FEDERATION OF ONTARIO NATURALISTS
KENT COUNTY SOCIAL JUSTICE COALITION
ONTARIO ASSOCIATION FOR IMPACT ASSESSMENT
COMMUNITY OPPOSING LANDFILL DEVELOPMENT
ESSEX-WINDSOR SOLID WASTE AUTHORITY
CONTENTS
Tuesday 6 August 1996
Environmental Assessment and Consultation Improvement Act, 1996, Bill 76, Mrs Elliott / Loi de 1996 améliorant le processus d'évaluation environnementale et de consultation publique, projet de loi 76, Mme Elliott
Turkstra Garrod Hodgson
Mr Herman Turkstra
Federation of Ontario Naturalists
Ms Neida Gonzalez, land use issues coordinator
Kent County Social Justice Coalition
Ms Brenda Cowen
Ontario Association for Impact Assessment
Mr Steven Rowe
Ms Greta Thompson
Citizens Environment Alliance
Mr Rick Coronado, coordinator
Ms Marcia Valiante, professor, environmental law, University of Windsor
Laidlaw Inc
Mr Bob Redhead, director, corporate and government affairs
Community Opposing Landfill Development
Mr Dave Maris
Essex-Windsor Solid Waste Authority
Mr Todd Pepper, general manager
STANDING COMMITTEE ON SOCIAL DEVELOPMENT
Chair / Président: Mr Richard Patten (Ottawa Centre / -Centre L)
Vice-Chair / Vice-Président: Mr John Gerretsen (Kingston and The Islands / Kingston et Les Îles L)
Mrs JanetEcker (Durham West / -Ouest PC)
Mr JohnGerretsen (Kingston and The Islands / Kingston et Les Îles L)
Mr MichaelGravelle (Port Arthur L)
Mrs HelenJohns (Huron PC)
Mr LeoJordan (Lanark-Renfrew PC)
Mr GerardKennedy (York South / -Sud L)
Mr FloydLaughren (Nickel Belt ND)
*Mrs JuliaMunro (Durham-York PC)
Mr DanNewman (Scarborough Centre / -Centre PC)
*Mr RichardPatten (Ottawa Centre / -Centre L)
*Mr TrevorPettit (Hamilton Mountain PC)
Mr Peter L. Preston (Brant-Haldimand PC)
Mr BruceSmith (Middlesex PC)
Mr BudWildman (Algoma ND)
*In attendance /présents
Substitutions present /Membres remplaçants présents:
Mrs BarbaraFisher (Bruce PC) for Mrs Ecker
Mr PatHoy (Essex-Kent L) for Mr Gerretsen
Mr DougGalt (Northumberland PC) for Mrs Johns
Mr MarcelBeaubien (Lambton PC) for Mr Jordan
Mr DaltonMcGuinty (Ottawa South / -Sud L) for Mr Kennedy
Mr R. GaryStewart (Peterborough PC) for Mr Newman
Mrs LillianRoss (Hamilton West / -Ouest PC) for Mr Preston
Mr EdDoyle (Wentworth East / -Est) for Mr Smith
Ms MarilynChurley (Riverdale ND) for Mr Wildman
Clerk / Greffière: Ms Lynn Mellor
Staff / Personnel: Mr Ted Glenn, research officer, Legislative Research Service
ENVIRONMENTAL ASSESSMENT AND CONSULTATION IMPROVEMENT ACT, 1996 / LOI DE 1996 AMÉLIORANT LE PROCESSUS D'ÉVALUATION ENVIRONNEMENTALE ET DE CONSULTATION PUBLIQUE
Consideration of Bill 76, An Act to improve environmental protection, increase accountability and enshrine public consultation in the Environmental Assessment Act / Projet de loi 76, Loi visant à améliorer la protection de l'environnement, à accroître l'obligation de rendre des comptes et à intégrer la consultation publique à la Loi sur les évaluations environnementales.
The Chair (Mr Richard Patten): Ladies and gentlemen, we want to get started. It's good to be here in Chatham, in spite of the environmental alert, I might add, which seems somehow appropriate. We have some witnesses before us this morning. Welcome to the witnesses. Thank you for taking the time to consider the issue before us, which is a review of, and your testimony on Bill 76, An Act to improve environmental protection, increase accountability and enshrine public consultation in the Environmental Assessment Act.
TURKSTRA GARROD HODGSON
The Chair: We are prepared to hear our first witness, Turkstra Garrod Hodgson. You have up to one half-hour in which to make your presentation. Any time you leave is then available for questions from the three party representatives and chances for responses on those.
Mr Herman Turkstra: Thank you very much, Mr Chairman and members of the committee. I've given Ms Mellor copies of my remarks. I assume they've been distributed to the members. I'd like to read significant portions of it, but I will leave some of it because of the pressure of time, and I'd like to have an opportunity to answer questions.
I'd like to give you some of my personal background, not so much to necessarily brag about it but simply to let you know whom you're dealing with and what kind of experience I've had.
I've been involved in environmental assessments for over 30 years. For the first 20 of those years we called them OMB hearings, but many of the real issues were the same and many of the problems were the same.
During the last 10 years I have had a great deal of experience working on projects under the Environmental Assessment Act. I have represented citizens' groups opposing projects -- I think Ms Ross will know at least one of those -- and I've fought on a number of occasions to preserve natural environmental features on issues.
I've conducted environmental assessments for private industry, including the St Lawrence Cement proposal to replace coal in the kiln with fuel derived from municipal garbage, and for approval of a major landfill which was just recently approved by the present Ontario government.
I have been hired by the Environmental Assessment Board itself to assist board members in dealing with long and complex hearings and with intervenor funding; for example, the OWMC hearings and the Ontario Hydro supply and demand hearings.
Other members of my firm have worked on a similar scope. My colleague Doug Hodgson was the person who raised the argument with regard to salt mine disposal because he was raised in Essex just down the road and knew about salt mines, and you'll recall that was the reason the board gave for refusing that proposal.
Our firm in Guelph represents municipalities and the county of Wellington and the city of Guelph, so I think I have some idea of what this is all about.
You may be interested to know, those members who are not from the city of Hamilton, that I have some understanding of the political realities of the situation because I served as an elected member of Hamilton's board of control, I belonged to all the appropriate, as I said, green, black, red and blue environmental associations and professional bodies, and I taught a little law. So when the conversation gets around to how you make wise decisions in the province of Ontario, I have a little bit of experience and I might be able to give you a little bit of help.
I'd like to talk to you about what, after all that experience, I consider an environmental assessment to be and to tell you about the time that Constantin Doxiadis, a famous Greek planner, was in Hamilton. I arranged a private lunch for him and other local affected officials. I asked him what the difference was between working on both sides of the Iron Curtain. He said that in the dictatorships, when he was hired, he sent in two or three of his people to get instructions from the boss; then after the project was completed, he sent in 100 people to deal with the sabotage and destruction of the project. In a democracy, when he was retained, he sent in 100 people to find out what was sound and would work, and then after the project was approved, he would leave two people behind to implement it.
That summarizes environmental assessment, because it's essentially a process to find out what will work and to find that out before starting construction and to minimize outrage.
Our current form of environmental assessment has its roots in the ability of computers to produce graphic analyses of large bodies of data. The first environmental assessment I saw was in the 1960s. It consisted of a computer program which plotted a route for a state highway in 10 different ways: one way to protect wetlands, another to protect historic sites, another to cut construction costs and another for safe driving. After the computer had plotted all 10 different alternatives based on 10 different criteria, some bright technician thought it might be interesting to see what would happen if we printed the 10 results on transparencies and laid them one on top of the other. The result was spectacular, because the best route stood out graphically.
The same thinking went into the Ontario Hydro route selection process, and there grew a belief you could find a single best route. We have spent a fortune in this province in trying to achieve that impossible goal.
After Hydro corridors and highways, the act was then applied to landfills, which meant that it replaced the former system where the county engineer would go for a drive with the warden, they would eliminate the sites that were close to the farms of politically connected residents, test the result on engineering principles and choose the cheapest. The problem was that a lot of those landfills leaked and caused problems. So landfills became the fad whipping target of the 1970s and 1980s, just as sewage treatment plants had become the whipping target of the 1950s and 1960s, because they too originally leaked and smelled.
When engineering caught up with the problems of the sewage treatment plants, the public's attention moved on to landfills, and now that the engineers have caught up with the problems of landfills, the public's attention will shortly move on to something else. I encourage you not to look at this legislation in the light of landfills. Taken in the long view of life, they have had their day. What we need for landfills and sewage treatment plants are published clear standards of environmental protection, and their siting can be left to the normal land use planning process.
Environmental assessments are complex planning processes and there are three fundamental problems they address: Is the proposed project needed? Are there smarter alternative ways to get the result you need? How can we ensure that the project, when built, will not cause serious long-term harm to people or the natural environment?
This latter issue is clearly the most important because we have learned that our children will pay in spades in the future for the serious environmental mistakes we make today.
It is going to take a lot of money and a lot of time to clean up Hamilton harbour.
Once the swamp is killed, the butterflies are gone, the orchards next to the swamp are no longer pollinated and the crops are cut in half, we will find it very hard to go back and recreate the swamp.
In that context, I'd like to give you some guidelines from my own experience which I hope may give you some assistance as you are considering this bill:
(1) Environmental assessment should be distinguished from environmental impact assessment. Impact assessment is critical. That's what the Environmental Protection Act is all about and its strength should not be diminished and its role not forgotten. Looking at alternatives should not take focus away from carefully studying environmental impact. Resources to study impact should not be diverted to an overly complex study of alternatives.
(2) Environmental assessment in Ontario has become an art form. It has made millions of dollars for lawyers, including our firm, and for consultants because of the lack of clarity in the existing section 5 of the Environmental Assessment Act. That is wrong and must be corrected. The Ontario EA process has developed its own language and culture. The general public and the business community do not understand it and are not comfortable with it. The existing section 5 is a gift to the legal community, consultants and hearing officers. Half my time on a major environmental assessment is spent trying to work through the various arcane interpretations of what that section calls for.
(3) There is a desperate need for early binding decisions, and I would like to put that in the context of public consultation.
I believe passionately that the best decisions are made by sharing decision-making power with the people who will have to live with the results. The more power you share with the local community, the better decision you will achieve and the less outrage will accrue. You are engaged in such an outrage control mechanism today. By talking to me and others before you make your decision, you reduce the chance we will send outraged letters to the editor about the new bill. But more importantly, by consulting with people who live on the EA block, you may learn something from our grass-roots knowledge.
Exactly the same principles apply to a decision-making process for major projects that have potential for significant public and environmental impact.
I advise my clients to think of all of this as if they were dealing with a neighbour over the issue of where to locate your air conditioner.
In that context, human nature dictates we will only get off our couch at the last minute, so the public leaves the issue alone until 11:59. You have to create a process that requires involvement of municipalities and neighbours early and comprehensively. That can work under the new bill if the approved terms of reference are in fact approved and binding. Neighbours will start to take the process seriously at the beginning rather than waiting until the last minute and popping out of the woodwork. Binding interim decisions would also be helpful.
If you would like some of the experience we had in a recent landfill environmental assessment, I would be happy to answer questions. On this topic I speak not just for myself, but that's exactly what the seven community members who worked for three years on that environmental assessment had to say about the process.
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(4) The time has come to combine the Environmental Assessment Board and the Ontario Municipal Board.
The question of "where" in virtually every contested EA, called in EA jargon the siting issue, is generally nothing more than a land use issue, and it is not a sophisticated environmental issue. It is the same issue that is faced by persons wishing to locate co-op housing, group homes, hazardous chemical plants, racetracks, rock concerts or shopping malls. The present gap between the EA act and the Planning Act, between zoning issues and EA issues, is dangerous and costly and must be closed.
There is no need to have a specialized board dealing with environmental assessments. In the last year, I have spent months in front of a panel of the municipal board dealing with the most sensitive environmental issues for 750 acres of parkway belt land and will go back in October to work in front of a joint board with members from both the EAB and the OMB dealing with changes in the Niagara Escarpment plan. It would be no big deal to combine the two boards. In fact, it is dangerous to have a specialized board with some members who are recruited because they are experts. Instead of judging the evidence at the hearing, the expert board members have been known to decide for themselves before the hearing starts, on the basis of their own experience, making the hearing process almost irrelevant.
(5) Hearings are a bad way to attempt to resolve the social issues that are always raised in an EA process. The last thing anyone in the world needs is to have two or three people come from Toronto to set the values for Chatham.
Having said that, I have to put forward a contradictory position. We have to accept that in a perverse but effective way, access to hearings has a healthy effect. As long as a public hearing is possible, there is always a threat that your expert will be cross-examined under oath in public. Because of the hearing threat, we all take real precautions to ensure that our experts are right from the beginning. But most of us who have experience with these long hearings are fed up with them and would like to see them at least minimized. Strong, effective mediation built into the system will help, but the emphasis is on "strong." Generally that means using your most senior and experienced board members, who can talk with the voice of authority to the wrangling parties.
We have to recognize that the social issues debated in the EA process are, in the final analysis, political issues. Whether you put a landfill in an urban area or a rural area is largely a social and a political issue. This is why the appeal process ends in the cabinet. It also means that when the real dispute at the end of an EA is the social and political issues, a hearing is generally a waste of time.
(6) There is a fine line between taking the time needed to have a sound public exploration of a major project and a process that is so long it starts to harm the community. Timetables are absolutely essential, and the government reviewers and approving agencies must stick to the timetables as well as the proponent.
You have to give your agencies the staff and the budgets to perform on time, or the public and the business community will be harmed by delay. There is lots of very solid, hard evidence that these lengthy, complex processes cause real harm to communities. I want to say to you that the EA process hurts people as it's presently performed.
(7) We have a serious need to get the provincial government approval process out in the open. The way to guarantee poor decisions is to have the decision made behind closed doors. Every major decision along the way should be issued by government approval agencies in the first instance as a proposed ruling. I cannot tell you enough how destructive it is to have decisions made by government agencies at all levels where the opponents or the proponents do not have a real chance to see what the agency is proposing to decide before the decision is made. People who live next to a project know their own communities. Businesses who work in the field know something about the realities of their activities.
Staff reports and analyses at the provincial level should be as accessible as staff reports and analyses at the municipal level. It will reduce the number of mistakes and the number of times that we stumble into long, protracted disputes and hearings, and this would produce better decisions.
(8) There is a huge and fundamental difference between environmental assessments carried out by government agencies on the one hand and a private company on the other. It is totally inconsistent with the entire mode of operation of the business world to have a public debate on the need for a private project. Private enterprise responds to the market. There is nothing more destructive than a debate between a local opposing activist and a business manager on whether or not the need for the proposal exists, whether the need should be a public need or a private need. There is no point at which the thinking processes get anywhere on the same plane.
In the case of government projects, however, such a public analysis is desperately needed. The Ontario Hydro, OWMC and Pearson expansion reviews are good examples of the need for someone to take an outside look at the need for such projects. That was one of the sound reasons for introducing the Environmental Assessment Act in the first place, confining its operation through regulation to government activities, and leaving the private sector to be regulated by the Environmental Protection Act and zoning bylaws under the Planning Act.
The Environmental Assessment Act cannot work on the long term in regard to private sector proposals unless the realities of the decision-making process of the business world are built into the legislation. I say that with a clear understanding of the concerns that the current privatization movement might present an opportunity for governments to circumvent the EA act by carrying out government projects through private sector operators, and I'm happy to answer questions about that.
(9) There is a very serious need to ensure that the wording of the legislation does not encourage conflict over minor issues. The word "significant" does not presently appear in the legislation. Its absence has meant that when I go to oppose a proposal, I will draw up a list of dozens of ways to kill the project because I know that the process as presently constituted does not encourage a distinction between significant environmental impacts and minor. So those of us in the opposition business tally up every little aspect we can find, knowing that in the table of compliance versus non-compliance, weighting of significance is not always encouraged.
In the context of those principles, the first version of the bill made a number of significant improvements:
I strongly support the need to have process decisions made in a binding fashion early in the process.
Secondly, it would be wrong to set a universally binding process, because there is a big difference between a project in Chatham and one in Scarborough.
Thirdly, it is sound to have the legislation finally deal with class environmental assessments in an explicit fashion.
Fourthly, it is sound to get rid of that silly distinction between acceptance and approval stages. I've been working in this field for years and I really don't understand why it was there in the first place.
Next, the right of the minister to direct the Environmental Assessment Board on scoping issues by sending specific issues to be heard by the board is sound, and I might even consider strengthening it. I want to say that the underlying disputes between the ministry staff and the board have done nothing but create uncertainty, cost, delay and troubles.
The rest of my comments refer to specific terms of the bill's text. They are, if you like, a little bit more mechanical, and I'll supply those to the committee during the next week. But if you want to just have a start on looking at this issue of the wording, you might take a look at section 6 and ask yourself over the lunch break what you understand by the word "rationale" in that section. As the hearings go on, you might ask other people what they think that word means and see if you get any consistent development as to what it really means.
I fervently hope that before you finish, each member of this committee will take the time to look at one environmental assessment -- I mean the whole environmental assessment; I mean the 100 or 200 boxes over the five years, over the $7 million to $10 million to $15 million to $20 million that the current process has involved in it -- and give yourself a feeling for the way in which this has moved away from a simple objective of trying to ensure that good alternatives are looked at and that the environmental impacts are very carefully looked at as well.
Thank you for the opportunity to be here.
The Chair: We'll begin with the government side. We have 12 minutes left; that's four minutes for each caucus.
Mr Doug Galt (Northumberland): Thanks for the presentation. It's very enlightening and certainly very interesting, very thoughtful. You've obviously put a lot of effort into this.
You made reference to, and we have in the bill, public consultation. Do you see that it should be defined any further than what we have already, or do you feel comfortable with the enshrinement of public consultation at this point in time?
Mr Turkstra: I'm very comfortable with the idea of enshrining public consultation in the bill. I have some serious concerns about the actual wording. I think it would be a profound mistake to attempt to prescribe the form of public consultation. That is my specialty; that's what I do for a living. It is wrong to think that the Legislature or the EA branch can define what will work in a different community. It has to grow. I'll give you, in my notes on the specific wording, my comments on the text in that section that deals with public participation, but on principle I agree that it must be mandated.
Mr R. Gary Stewart (Peterborough): You made the comment on your last page that we might consider strengthening some of the specific issues that should be sent to the board. Can you elaborate a little bit on those you might suggest?
Mr Turkstra: Yes, sir. There is a conflict between the way in which the Environmental Assessment Board approaches some of the issues under the act and the way in which the ministry staff approach those issues. While that conflict is not very overt, it exists. Someone has to make a decision as to who's going to be the boss on that issue, and the fact of the matter is that there's an appeal to cabinet. It seems appropriate that the minister take the political responsibility, given the final cabinet appeal, to say, "This is what's going to the board and what the board will decide." There is some text in the current form of the bill that I'm not exactly sure will accomplish everything the bill was intended to accomplish, but I think it's sound that the minister take the political responsibility for saying, "These are the issues that are left at the end of the two years and this is what the board will decide," and that's what the board has to decide.
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I want to tell you that comes from the fact that even where the board in the past has been given narrow Environmental Protection Act hearings, the board has turned them into what amounts to an Environmental Assessment Act hearing. In other words, they've gone beyond the limit of it, so somebody has to set the rules and you've got to referee that fight.
Mr Stewart: Do you think that curtails any of the suggestions that the public may want to do or curtails any public involvement by that?
Mr Turkstra: Sir, uncertainty breeds psychosocial adverse impacts. If you don't know what the rules are, people get unnecessarily upset. They don't understand the dimensions of the problem. If you leave it to the board to define the terms of the hearing, you end up with people saying, "We have some magical result at the end in the form of the Environmental Assessment Board, and they can straighten all of these things out for us," and it doesn't happen and they get disillusioned and they go home unhappy and miserable.
Mr Dalton McGuinty (Ottawa South): Thank you, Mr Turkstra, for taking the time to share some of your expertise and insight with us.
There are a couple of things I wanted to raise with you, one with respect to your comment that it's dangerous to have a specialized board, where some members are recruited because they are experts. I want you to comment further on that and on what practically it would mean if we were to combine or merge the EA board and the Ontario Municipal Board, and also if you might comment on the fact that this bill will not provide for participant funding.
Mr Turkstra: I have to try to do that in one minute, right?
Mr McGuinty: Yes.
Mr Turkstra: Good. I was the person who argued in the Court of Appeal that I couldn't get a fair hearing in the Red Hill Creek hearing unless I had participant funding, so in some circles I'm considered as the grandfather of intervenor funding. The Court of Appeal in that case said the Legislature should do something, and the Legislature went and passed the intervenor funding act and all the lawyers think I'm wonderful, and that's great.
On a voluntary basis, I believe exquisitely that a proponent is wise to fund participant funding. I have some doubts about where and when under the intervenor funding act, specifically since I advised the board, I was counsel to the board on the Ontario Hydro supply and demand, and we watched one day when we finally added up all the figures and, in my recollection, I think it came to something like $25 million or so. It just got out of hand.
It's one thing to fund participants who are involved and are stakeholders and it's another thing to encourage a whole industry to develop in response to intervenor funding, which is what it did. So I think you ought to give a try at the terms of reference encouraging participant funding and see how that works. Because intervenor funding just got out of control.
Mr McGuinty, I'm sorry, I missed your first question.
Mr McGuinty: Your proposal that we merge or combine the EAB and the OMB.
Mr Turkstra: People have the idea that a hearing is some kind of investigative process, and it isn't; a hearing is a place where people go to fight. One person will come in and say, "I believe that the hydrogeology will fail on this site," and another person will say, "No, I believe the hydrogeology is fine, because it's clay," and this person will say, "No, I took a truck out there and I dug some holes in the clay and in fact it's cracking," and the other person will say, "That was an anomaly but the rest of the site is fine." So you get people who have to listen to the evidence and what you need are good judicial skills. You don't need a lot of hydrogeological skills, because if you hire a hydrogeologist and put that hydrogeologist on the board, that person will see the whole evidence through their own particular view rather than balancing the two cases.
Today I practise in front of a combined Environmental Assessment Board and Ontario Municipal Board. You can ask Mrs Ross, but if you had to compare the public impact and concern arising from a project called the Spider, which was a 500,000-population automobile racetrack which was going to be assessed by the Ontario Municipal Board under the Planning Act, and the Steetley landfill, which was to be assessed by the Environmental Assessment Board under the Environmental Assessment Act, you have to ask yourself why those two things end up in two areas, because the impacts are really profoundly much the same from both of them. As I say to you, I spent seven months in front of the Ontario Municipal Board last year in a highly contested hearing and all we did was deal with environmental issues -- the existence of the natural species on the side of the valleys and how the construction of houses would impact on those species -- all heard by the Ontario Municipal Board.
The third reason is, essentially where you put something is a land use issue, not an environmental issue, because there really is no difference between a rock concert and a waste transfer station. People get upset about them; they worry about the environmental impact on them; they worry about the way in which it affects their property values; they worry about the way in which it changes the character of the neighbourhood. What you need are good, sound decision-makers. Their jurisdictions overlap. You're constantly dealing with environmental issues in front of the OMB and you're dealing with land use issues in front of the Environmental Assessment Board. I tell you, as a lawyer who practises in front of both of them and has worked with both of them for years and years, there really is no useful purpose in having the two boards.
Ms Marilyn Churley (Riverdale): Thank you for your presentation today. Your long years of experience are, I'm sure, quite helpful to the government while they contemplate any necessary changes to the bill.
You mentioned section 6 a couple of times, I believe, and asked that we should look closely at the word "rationale" in there and ask other people what they think it means. I wonder if you could spend a few minutes telling us what you think it means and why you've picked that in particular to focus on.
Mr Turkstra: First of all, can I tell you, Ms Churley, that my job is to try to explain this legislation to groups of citizens, whether they're my clients because we represent them as an opposing group or because they're a group of stakeholders who are involved in, and my belief is that you turn the decision over to the stakeholders and let them make it.
I have to explain that legislation. I've never been able to explain that word. I have no idea what the hell it means; honestly, I don't. I've heard it expressed as why, I've heard it expressed as the need. One of the board members in an early decision said the word "rationale" imports into the legislation a requirement to define the need for the project, because you'll see that the word "need" is nowhere in there. Then, if you go past that word, you need "a statement of the rationale for...the alternative methods of carrying out the undertaking, and the alternatives to the undertaking." What does that mean? I honestly don't know.
I had some time last night, because I got here a little early, and I asked myself, "If one of the committee members said to me, `Could you fix that section?' I'd say, `Yes, I think you can.'" As a matter of fact -- I hate to burden you with my handwriting -- I have what I think it means.
Ms Churley: Aha, finally, after all these years.
Mr Turkstra: No, what I think the legislation means.
Ms Churley: Yes, thank you. I wonder, do I have another minute here? I have another question for you.
Mr Turkstra: Yes, can I deal with your other question?
Ms Churley: But that is something that you would like a further look at, obviously.
In terms of public consultation, and I'm interested to hear you say that you believe the stakeholders need to understand what's happening and participate, the upfront consultation that this legislation proposes includes the public, but the public is not at this point defined. I wonder, because of your work with the stakeholders, how you would advise the government to make sure that public consultation is meaningful and how the government should determine who the public is in this case to begin the upfront consultations with.
Mr Turkstra: I will give you a note on that to flesh out what I'm about to say, but let me tell you that I don't know what the words "as may be interested" mean.
Ms Churley: Exactly, yes.
Mr Turkstra: I have no idea what that means. I think there will be lawsuits over that wording coming out of your ears. I think it's a mistake. I think that wording is a mistake, but I don't think you should take away from it. I don't think you should arbitrarily define what the public is, but what you should do is make sure that public participation is mandated. I will provide you with some texts that may be of some assistance in that.
The Chair: Mr Turkstra, thank you very kindly for your presentation. It was very thoughtful and provocative.
Mr Turkstra: Good luck, sir.
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FEDERATION OF ONTARIO NATURALISTS
The Chair: We will entertain our next witness, who will be from the Federation of Ontario Naturalists. Welcome to our hearings. Any time that you have remaining from your presentation will be devoted to questions from the three parties.
Ms Neida Gonzalez: My name is Neida Gonzalez. I am representing the Federation of Ontario Naturalists this morning. Good morning. I'm a land use planner by trade, and this presentation is the collective work of the board of the Federation of Ontario Naturalists as well as various staff members.
The Federation of Ontario Naturalists is a conservation group that has been around in Ontario for over 60 years. During that time we've worked diligently to protect natural heritage in Ontario, as well as wildlife and environmental issues.
We've worked with the environmental assessment process since its beginning in the 1970s and we have experience with various processes and hearings, including the class timber EA as well as provincial highways and sewage and various other issues. On that note, we feel we have some experience in this area and some thoughts we'd like to share with you about Bill 76 and some of the changes that are going to be implemented.
Overall, we realize that EA needs amendment, that the process needs to be more effective and efficient. Our concern is that while we do that we keep in mind the purpose of the Environmental Assessment Act, which is the environment, and make sure that the process will still do what it's intended to do, which is to protect the environment.
There are five areas in particular we would like to look at. Those would be the terms of reference, the exemption process, class environmental assessments, harmonization and public consultation.
Starting with the terms of reference, we believe they could be a very good tool to streamline the process. We have few concerns the way they're laid out at the moment. Overall in this presentation two things that I would like to stress are that the fundamental requirements of the EA process, which are now under section 5(3) of the current act, need to be upheld, and that public consultation also needs to be enshrined in this act, which is the intent of Bill 76 to begin with.
Therefore, we're very concerned that in the terms of reference there's not a public consultation process laid out. It will be the first stage of the EA process once the terms of reference are enshrined in this legislation, and we feel that the public needs to be involved at this early stage.
Secondly, we are very concerned that the minister will have the ability to dispense with environmental assessment requirements that now stand in section 5(3). In the latest presentation here, by Herman Turkstra, he indicated that we should look at the word "rationale." I've outlined here in this presentation what, as an environmental group, we think the basics of section 5(3) are and what needs to be upheld, and those are: to describe the purpose of the undertaking; to identify alternative methods of carrying out the undertaking; to identify alternatives to the undertaking; and, of course, to describe and evaluate the biophysical, socioeconomic and cultural impacts of the undertaking.
Impact assessment and looking at alternative methods and alternatives to the undertaking are two components that go hand in hand in EA right now. We feel that needs to remain.
Jumping to class EAs, we've also noticed that the terms of reference in that area indicate that the minister would have the ability to dispense with EA requirements.
We recommend that this power that the minister will have if Bill 76 stands needs to be amended so that the 5(3) requirements are enshrined in EAA and that those cannot be dispensed under any circumstances. Also, there needs to be a public consultation process in regard to the terms of reference.
Our second area of concern is the exemption process. There haven't been very many changes in Bill 76 to the exemption process from what already exists in EAA, but over the years it has been a controversial issue and we feel that it hasn't been addressed adequately in this bill. There still are no clear criteria or exemption procedures in the bill and we feel that certain projects are being exempted at the moment which should not be exempted and we feel that this issue needs to be clarified and that by including clear criteria and exemption procedures in the act this would be alleviated.
In respect to the exemption process, we've noticed that the recommendations made by the Environmental Assessment Advisory Committee in its report to the minister, number 47, were not really taken into account. Overall, we feel that this committee, given the opportunity, should go back and look at that report. We feel that it was a very well-thought-out report and that the recommendations should be reconsidered and incorporated into this bill wherever possible.
With respect to class environmental assessments, we're afraid that class EAs are going to apply to major projects that are of a unique nature. Clearly, class EAs are intended to apply to minor projects that are similar in nature and have predictable and mitigable impacts. This clearly isn't described in Bill 76. I think that needs to be tightened up in that section and minor projects need to be defined as the goal of the class EA process. Also, as I mentioned before, the terms-of-reference procedure for class EAs is set up in a way that the minister can bypass EA requirements.
Our recommendation, in this case again, is to incorporate EAAC's recommendations on class EAs and, as a minimum, to include criteria that limit class EA undertakings to minor projects and to require that basic EA components be addressed in the terms of reference.
Harmonization is an issue that hasn't been addressed over the years. It really needs to be addressed in this bill, which this bill does do. We fully support harmonization of Ontario's EA process with other jurisdictions, including the federal process. However, we feel that Ontario's standards cannot be compromised by joint assessments. To facilitate joint assessments by creating a situation where we are lowering our standards is not acceptable. We feel it has to be made very clear under all circumstances that Ontario's EA system will not be compromised in joint assessments. We don't feel that Bill 76 reflects this at the moment.
Our recommendation is to ensure that basic requirements of EA now in section 5(3) be addressed in joint assessments and that section 3.1 in Bill 76 provide the public with the opportunity to comment on proposed joint assessments.
Overall, we'd like to make some comments on public consultation. We appreciate that the intent of the bill is to increase accountability and enshrine public consultation in the Environmental Assessment Act. However, there are a few instances where the bill has not achieved this goal. Terms of reference are going to play a critical role in EA, and this is the point in time where the public needs to be involved. If you have terms of reference that lay out the direction of EA and the public then is involved, they will not have had any input as to what direction the EA process is going to be taking. I feel this will cause conflict with the public and not make the EA process a smoother process.
Also, there are other areas where the public needs to be considered. This is with the exemption process. I think notice at least has to be given to the public when projects and proponents are going to be exempted. Referrals to board hearings and scoping of hearings are also a place where the public needs to be involved. A balance needs to be reached between public access to the system and the discretionary powers being given to the minister.
Our recommendation on public consultation is that we need to amend Bill 76 to provide meaningful public consultation throughout the EA process.
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In conclusion, I would like to talk about what is being omitted from Bill 76. It's already been brought up that there's much overlap between the environmental assessment process and the land use planning process. This issue has been brought up before, that there needs to be integration between these two process. This bill fails to deal with that issue. I don't believe the solution is to amalgamate the two boards. That would be starting at the top of the issue when you really need to work it through the whole process at ground level and see where the overlap is with municipalities and with the EA process. And there needs to be real integration. The problem is not going to go away by amalgamating the two boards; there's going to be continual conflict there.
Another issue that is not being addressed is applying EA to private sector projects. This is an increased concern now with privatization efforts, where the private sector is going to be taking over areas that are typically the responsibility of the public sector, whether this be provisions for sewage or garbage disposal, landfills, incineration, whatever areas we might be taking privatization into. I think this changes the scope of EA. EA was meant to deal with those projects, not necessarily just with public proponents. If the proponents are no longer the public, we have to really look where EA is going to go as far as private projects are concerned.
Also, we're very concerned that issues such as compliance and monitoring have not really been dealt with. We're concerned that we go through the entire EA process, and then the recommendations, terms and conditions are not being followed and we don't have a recourse to make sure that happens. If we want to use our money efficiently, if we're going to go to the trouble of having these processes, we need to make sure it's implemented. I'm not sure that's happening right now.
In conclusion, the failure of Bill 76 to uphold the fundamental EA requirements and the public's right to participate in each step of the EA process are our major concerns. We feel that this government has a real opportunity to improve this piece of legislation and we encourage the committee to read our recommendations and those of other groups and make changes accordingly, if possible. It really would be to the benefit of the natural environment and our resources to have them adequately protected and used. That is the conclusion of my presentation.
The Chair: Thank you. We rotate between the parties for questions. This round we'll begin with the Liberal Party. We have a little over five minutes for each caucus.
Mr McGuinty: Thank you for your presentation. I wonder if you could explain to me, in as practical a set of terms as possible so I can better understand, what it would mean to the public to have access in -- is it in lending shape to the terms of reference or being consulted about the terms of reference before they're finalized, and that the public doesn't haven't that access until somebody says, "Here are the terms of reference; this is what we're going to be dealing with"?
Ms Gonzalez: The way it's currently addressed in legislation is, "When preparing an environmental assessment, a proponent should consult about the undertaking with such persons as may be interested." That may be a little too vague, but obviously there's a scope of people who are the public of interest for various EA processes and then there's the larger public. How you find a balance between the two -- I'm not sure I have the right wording for you right now. We're a little worried that the current wording might be too limited. But our major concern is that public access to the terms-of-reference process isn't addressed at all at the moment. How that happens is an issue for discussion, but to start off with, we'd like to see it in there, and it's not in there right now. That's our basic problem, that the public really doesn't have a role.
Mr McGuinty: If I felt that I should have been involved in lending shape to the terms of reference and I was not contacted -- maybe this is something the parliamentary assistant could answer -- do I have a right of appeal? Do I have any kind of remedy? How would that work?
The Chair: Is the question to the witness or to the parliamentary assistant?
Mr McGuinty: The parliamentary assistant.
The Chair: We suggest you take that under advisement and address your question to the witness, because we're limited.
Mr McGuinty: I'm not sure they have the answer to that.
Ms Gonzalez: There's not a recourse, as far as we can see at the moment. We're worried that the direction of the EA process is going to be decided before the public has even had a chance to become involved in the EA process.
Mr McGuinty: The exemption process is always a controversial one. I wonder if you could tell us what the general rule would be. What guidelines would you want to lay down? When should a government exempt an undertaking from the environmental assessment process?
Ms Gonzalez: What should be exempted?
Mr McGuinty: Yes, when should they, what factors ought they to be considering, or should everything be subject to a hearing?
Ms Gonzalez: We're not saying everything has to be subject to a hearing, but without some criteria based on environmental values and issues, we're in a position where things are being exempted and we're not given any reason. There's no requirement even for us to have a written response about why something is being exempted. It's done behind closed doors, and at the moment it can be an arbitrary process. We're not saying that every time an exemption is passed, it is arbitrary, but there's no balance in the system now to make sure that exemptions are being passed based on solid environmental reasons that address why this undertaking isn't going to have an effect on the environment and therefore merits an exemption. There's nothing there now to stipulate that has to happen.
We've seen exemptions in the past where we've questioned them. We have questioned, and continue to, exemptions to the parks act. We're going through looking at management plans for parks, and there are questions in our minds why this would not come under environmental assessment, considering that it's not just an administrative process we're dealing with. There are numerous examples. There's nothing in the legislation now that stipulates why an exemption should be given, under what circumstances, what the regulations may be. That needs to be made clear to really reassure the public that exemptions are happening for the right reasons.
The Chair: Let's now move to the NDP.
Ms Churley: Thank you for your presentation. To start with a simple question following up on the Liberal caucus question, would you say that this process we're discussing here, the exemptions and the minister's discretion, is politicizing the process too much?
Ms Gonzalez: We feel there isn't a balance, so the answer to your question is yes. It lends itself to be a political process, which is hard to get away from when we're dealing with politics. There need to be things in the legislation that take it back to a less arbitrary decision. It's not to say that every decision, as I said before, is ill-founded, but there is nothing to guarantee that that can't happen.
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Ms Churley: I think what you're saying is that as much clarity as possible, which of course in EAs is very difficult to get to in some cases, but as many upfront rules as possible and as much clarity and transparency as possible so that the public and the proponents understand what the guidelines are, that it's all transparent is important. You're saying this bill does not provide that in some of these cases.
Ms Gonzalez: In respect to exemptions, it does not provide it. To be fair, it does not provide it in the current legislation. I think it's an issue that hasn't been addressed as fully as it can be.
Ms Churley: Intervenor funding: As you know, the Intervenor Funding Project Act has run out and the government has not renewed it. There's nothing in its place. I'm wondering what your opinion is as to what effect that may have on communities trying to participate in hearings.
Ms Gonzalez: This is a difficult issue as all groups have seen their intervenor funding manipulated and used for reasons that it was not intended, but we've also seen groups that have really needed it, that have used it properly, effectively and efficiently for the purpose it was intended. It needs to be replaced. The problems that were occurring with it need to be addressed. We don't believe it's the solution just to get rid of it and not replace it with anything. We are very concerned that the groups that do need it don't have access to it and that this is going to limit the number of good community groups that have real issues from appearing at hearings and addressing real environmental concerns.
Mr Galt: Thanks very much. A very thoughtful presentation; I certainly enjoyed it. If I could just make a point of clarification as it relates to exemption requests, these go on to the Environmental Bill of Rights registry for a period of 30 days to solicit public comment prior to any decision being made upon those requests. This is carried out as a matter of course. It was under the previous act, although it was not in the act; nor is it in this particular bill.
Just before I turn to my colleagues, I'd like to quickly ask you about your thoughts on public consultation early in the terms-of-reference period. You alluded to it, but you really didn't give us any thoughts on how it maybe really should be in there.
Ms Gonzalez: I could provide you with specific wording, but our interest really is that where the terms of reference, which are in sections 6.2 and 6.3 -- clearly it looks like the minister can have made the decision before the public has ever been involved because it really is a relationship between the proponent and the minister or the ministry. They will deal with the terms of reference, which are needed, but I think there needs to be another element there where the public is brought into those negotiations at some point. I'm not sure it has to be a public representation, and the proponent and the ministry negotiating, but certainly that draft terms of reference go out to concerned members of the public needs to be put in as a separate clause.
Mr Galt: Certainly it's expected anyway.
Mr Trevor Pettit (Hamilton Mountain): Thank you very much for your presentation. I think Dr Galt has clarified your concern about the lack of public input because I think it is in section 3. My question for you relative to the terms of reference would be, do you agree that they are a good way to define scientific and technical issues up front?
Ms Gonzalez: We believe it's a good way to scope out the specific issues that need to be addressed. Our only concern is that the overall issues of EA be addressed at the same time.
Mr Pettit: Will the identification of those issues be a benefit to groups such as yours and other organizations that perhaps have limited resources?
Ms Gonzalez: Certainly. The EA process needs to be streamlined.
The Chair: Are there other questions on the government side? You still have a few minutes left.
Mr Stewart: I want to go to the class EAs. Your comment there suggests that class EAs should be clearly limited to minor projects. I guess when you use words like "minor" or "major," it's like minor variances: What's really minor? In my mind, if you're going to limit it to minor projects, does it not create controversy? What are you suggesting minor projects should be? If you're going to set standards, then why not look at projects, period, and forget about that word "minor"?
Ms Gonzalez: The intent of the class EA process we believe is to set up a standard process for projects that are similar in nature, that have similar issues, and group them under one EA process because the impacts are the same. Now, if you're looking at just individual projects with no definition of whether they fall into the category of projects that are of similar nature, that have predictable impacts, then you're really blurring the line between what falls under a class EA and what needs to be done under a full environmental assessment. Clearly, class EAs will only work if the intent of having the projects be of a similar nature remains. If it's going to be any project, then really the intent of the class EA process isn't being met.
Mr Stewart: My concern is the wording of it. I have no problems with what you're suggesting, that the projects be of similar nature -- that's not a problem -- whether it be a paint shop or a cleaning establishment, whatever it might be. Where I do have problems is where you're designating the word "minor," and it goes to a lot of these hearings that you have. It takes years and years to get them on before these boards because local municipalities or government, whatever, cannot -- there are no criteria as to what is major or minor. I have difficulty with that.
Ms Gonzalez: What we're asking is for clarity and for definition because the last thing that we want to see is, whether you call it a major project, a project that does not fall under any of the criteria of any class EA being pigeonholed into a class EA process because you don't want to go through a full environmental assessment.
Ms Churley: I wanted to come back to the public consultation aspect. Speaking to the area where there is upfront public consultation, how do you feel the government should define who the public is? Are you satisfied with the definition here and what needs to be done to clarify that section?
Ms Gonzalez: We have concerns with the definition. We've consulted with various legal bodies and they haven't conclusively given us a definition that we're happy with either. We've already discussed this with various people in the ministry, and once we do have a definition we think is workable, we certainly will pass it on to you. But we are not satisfied with what is there right now. We feel it's a little too vague and loose and can be misinterpreted.
The Chair: Thank you very much, Ms Gonzalez, for taking the time to appear before us today. We appreciate your comments. If you have any subsequent thoughts, you can still submit those in writing to the committee by way of the clerk's office.
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KENT COUNTY SOCIAL JUSTICE COALITION
The Chair: We are ready for the next witnesses, from the women's committee of the Kent County Social Justice Coalition. Welcome. Thank you for joining us.
Ms Brenda Cowen: Good morning. My name is Brenda Cowen and I'm addressing this hearing of the standing committee on social development as a representative of the Kent County Social Justice Coalition. I was supposed to be having a copresenter this morning; however, she regrets that she can't attend.
By definition, the Kent County Social Justice Coalition is "a caring community committed to working together towards social justice and a healthy environment for all individuals in an equal society." We accomplish this through educating, organizing, mobilizing and, when necessary, protesting. We've had much opportunity to do that this past year. There are currently 29 such coalitions throughout the province of Ontario.
From the paperwork that I have been provided by the committee, it is my understanding that Bill 76, the Environmental Assessment and Consultation Improvement Act, is a proposed bill which is designed to (1) improve environmental protection, (2) increase accountability, and (3) enshrine public consultation in the Environmental Assessment Act. My intention is to review the proposal focusing on these three contentions.
A fundamental tenet of a society that values social justice is its willingness, through its laws, to be inclusive with regard to the opinions and concerns of all its citizens. All laws must therefore contain provisions which will ensure that decisions are made only after full public input has been sought and heard. Bill 76 is deficient in this regard in the following areas:
(1) In designing the new terms of reference, which is subsection 6(1) of Bill 76, there is no provision for public input in this crucial stage of the environmental assessment process.
(2) The duty-to-consult requirement by the proponent, which is section 6.1 of Bill 76, is not triggered during the critical early stages of the process, but rather during the documentation stage of the environmental assessment.
(3) There do not appear to be clear definitions as to what constitutes "meaningful public consultations," or in fact who "interested persons" are.
(4) Bill 76 fails to provide intervenor or participant funding, a necessary inclusion to ensure that participation rights are exercised.
It is therefore recommended that there be put in place appropriate public consultation in the terms of reference portion of the process. As well, it is recommended that intervenor funding be made available to members of the public. Nebulous definitions throughout the act of the kind mentioned in number (3) -- for example, "interested persons" -- need to be more clearly defined in the legislation to address accountability requirements.
Mediation: Section 8 of Bill 76 discusses the requirements with regard to mediation.
(1) It is the minister who decides which cases will be referred for mediation as well as who is notified with regard to his or her decision. This is subsection 8(3).
(2) The minister decides who the parties of the mediation are. That's subsection 8(4).
(3) The mediation proceedings are closed to the public unless the mediator decides otherwise. This is subsection 8(5).
(4) The minister is the only person who can make public the information contained in the mediator's written report. This is subsection 8(8).
(5) When disclosure is required, it is the minister who can disclose to the public the contents of the report.
It is my opinion that this section completely violates both the alleged commitments to public consultation and accountability. It is recommended, therefore, that this section be rewritten to include mediation sessions which are open to the public, as well as safeguards put in place to ensure that the minister is accountable for all information which surfaces in these sessions.
I would now like to discuss board hearings, which are subsections 9(3) to (5), 9(7), 9(8), sections 9.1, 11.3 and 27.1.
(1) The minister is able under these sections to deny reasonable hearing requests from the public.
(2) The minister also is allowed to restrict the scope of the EA hearing, if granted, by limiting the length of the hearing and by having the final say on what information can or cannot be heard by the EA board.
(3) The minister is further empowered to revoke or vary a decision made by the EA board without appropriate public consultation.
(4) This bill empowers the minister to issue policy guidelines that the EA board must consider, but does not ensure that there will be full public consultation on these documents.
It is therefore recommended that the minister be restricted from denying a hearing. It is further recommended that policy guidelines are developed with full public participation. It is recommended that the minister not be empowered with the ability to revoke or vary a decision of the EA board. It should be mandatory that the EA board be comprised of individuals with no conflicts of interest, with a comprehensive understanding of the issues, and entirely independent of government and corporate influence. This is what currently exists. It is inconceivable to me why there needs to be such a change.
Harmonization, section 3.1:
(1) The minister can vary or dispense with any requirement under the EA act, as well as grant wholesale exemptions under the guise of "harmonization."
(2) Bill 76 fails to define "equivalency."
(3) Bill 76 fails to provide for adequate public notice when a harmonization order is enacted.
It is therefore recommended that there be put in place minimum equivalency criteria which will apply to harmonization orders which will clearly define what "equivalency" means. It is further recommended that any joint assessments be subject to public notice and scrutiny, including the Environmental Bill of Rights registry.
In conclusion, my review of the proposed Bill 76 leaves me with more questions than answers and creates in my mind the fear that the decision-making power that was moving towards a recognition that the public's rights with regard to input into the process be respected and guaranteed is now solely transferred to the minister or his or her designate. This being the case, how is accountability ensured? When a minister is empowered to unilaterally dispense with any requirement under the EA act when making a harmonization order without any public consultation or written justification for his decision, how does this ensure accountability?
Where are the provisions for full public input into each phase of the EA process? In this bill, the public are excluded from the crucial terms-of-reference process, as well as mediation sessions. Throughout this bill, there is no provision for the proponent to pay participant or intervenor funding. How does this "enshrine public consultation in the EA process"?
Lastly, how will this bill guarantee the environmental integrity of this province? When EA board decisions can be varied or revoked, when joint assessments have no requirements of adherence to the EA act, when the power lies firmly in one person's hands, how does this "improve environmental protection"?
My faith in this government having an agenda other than that of making this province business-friendly has been tested over this past year, and I no longer labour under the illusion that considerations such as democratic process, care and concern for the opinions of its citizens, and assuming a guardianship role to protect what is left of our environment are part of that agenda. I think this has been clearly demonstrated in Bill 76.
This concludes my presentation.
The Chair: Thank you. We begin the questioning with the member from the NDP.
Ms Churley: Thank you for your presentation. Have you personally ever been involved in any way as a citizen in an EA hearing?
Ms Cowen: No, I haven't.
Ms Churley: So you haven't been through any of the long processes. I believe that pretty well everybody agrees that some changes had to be made to the EA, to the process which is now in place, not necessarily these changes but that there had to be some changes. Would you agree with that?
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Ms Cowen: I think it would be necessary for you to be asking me what specific changes and then I could respond according to that.
Ms Churley: Sure. I guess what I'm getting at is that I have supported the concept of trying to scope and streamline. Our government started that process. Certainly everybody who's been involved with it for the past 20 years or so, everybody I know from all sides of the debate, feels that there had to be some changes made.
However, I tend to agree with you on the serious shortfalls within this legislation and particularly around the public consultation, because the title of the bill and the government's stated objective is that it should result in greater certainty and predictability. What it does is that ironically it's likely going to increase the uncertainty and the unpredictability, in my view, by overpoliticizing some of the decisions through these excessive ministerial and directive powers. I believe in some cases that will as well have a negative impact on the proponents. While we're trying to go to more clarity and certainty, this does not achieve the stated objective to scope it but at the same time ensure more public participation and more certainty.
My question is what would your advice be -- I know it's a very complex piece of legislation overall -- to this government to ensure that this kind of politicization of the process -- that the public have more participation, as stated, and that there be more certainty in the process for the public and the proponent?
Ms Cowen: I think probably it would be initially necessary to be clarifying a lot of the definitions contained within this bill. I'm talking about specifically interested persons and what does "interested persons" mean. I think it's mandatory at every particular stage of the environmental assessment process that there be public input. How that is defined with regard to who the public is, who the interested persons are, as I had said, needs to be really clearly defined, but it is very necessary for us to be involved at those crucial stages, at the terms of reference stage. How that is actually done is going to be up to the decision-makers to be deciding, but I would like to suggest that rather than focusing on that not being a necessary consideration, that it is indeed a primary consideration.
Ms Churley: Do I have more time?
The Chair: Yes, you have more time.
Ms Churley: Coming back to intervenor funding, again I'd ask you, have you had any direct experience in that?
Ms Cowen: Not direct, no.
Ms Churley: Not direct, but I assume that within your social justice movement there have been people who have been directly involved in this process.
Ms Cowen: Exactly.
Ms Churley: Has anybody within that community had access, the benefit of intervenor funding, before?
Ms Cowen: Yes.
Ms Churley: Through an environmental assessment process.
Ms Cowen: That's right.
Ms Churley: I see. My concern, and I think you expressed it as well, is that the EA bill that was in existence is gone. How would you see community groups within your community raising money to participate in an EA hearing which, as you know, can be very complex and lengthy?
Ms Cowen: It can be very complex and very lengthy -- you're right -- and the longer that takes place the more funds are necessary. I think that any community particularly in 1996 in Ontario has an inadequate amount of money to begin with. With the number of layoffs, the possibility of rising municipal taxes, I think everyone in this province is scrambling. I shouldn't say everyone; a lot of people are scrambling. I think that the lack of intervenor funding or participant funding simply means there are going to be more people attempting to attain dollars that just may not exist. We can talk about holding yard sales or bingos or something like that to be able to raise the required funds, but I think this is an undue hardship placed on people when it is their right, as citizens of this province, to have access to hearings and assessments when we're dealing with the environment.
The Chair: On to the government side. We'll start the questioning with Mrs Fisher.
Mrs Barbara Fisher (Bruce): Thank you very much for your participation today. You share with us some views that maybe haven't been expressed before. I want to, if I could, focus on two words in your presentation, to "ensure accountability." I think that to keep it as non-partisan as we should in this forum, the two previous governments as well indicated there was a need for more public participation. But with regard to your question of accountability, I would ask if the average length of an Environmental Assessment Board hearing in the past of 32.3 months was reasonable, how that can be held accountable to anybody, and with that type of duration, where things perhaps could have been expressed in a more structured time frame but with open opportunity for everybody to participate.
Ms Cowen: I'm not sure that I'm clear about your question. I'm not sure how extending or placing a time frame on a process clearly discusses accountability. Can you clarify that more?
Mrs Fisher: I'm really asking you what you meant by "ensure accountability." To whom? To the public? To ratepayers? To government? To interest groups? What were you referring to when you said we should ensure accountability?
Ms Cowen: I think I had made it fairly clear what I meant with regard to accountability. What I'm talking about is that when decisions are made behind closed doors, when one person or his or her designate has the power to revoke or vary a board ruling, when mediation sessions are closed to the public, how does that ensure accountability?
I had asked the question, how is that done? If nobody has access to the information, how do we know what the information is, and therefore how does that ensure ethical accountability?
Mrs Fisher: On a comparative basis in the past I can find maybe two instances where public consultation was permitted. I don't think this government is implying at all, in any case, that public consultation should not be permitted. Dr Galt, in response to a previous question, talked about the Environmental Bill of Rights disclosure of what would be included in the development of terms of reference: for example, the first stage of the new process. Included in there will be such things that talk about the description of the undertaking, the proposed study area, alternatives, public and agency consultations etc. So at every opportunity from the start of this process I think the public, being interest groups, agencies, municipalities, individuals, will have the right to access prior to a decision being made as to what even the terms of reference to be studied will include.
Ms Cowen: Then why is this not outlined in the bill? You're telling me now that all this is going to be done, that there is going to be compliance with full public consultation. My knowledge of this is contained in a written document and nowhere in that written document does it ensure the issues I have brought up with regard to public consultation. You can sit there and suggest to me that, "Oh yes, all of this is going to be done; this is going to done; there is going to be public consultation," but where is it written down that this is actually going to happen? It isn't contained within the second draft of Bill 76; it is not there.
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Mrs Fisher: I won't disagree with that, but I do agree that in the past with regs, guidelines and with EBRs as well that has been the process. This is not unusual to the process as it has been in the past.
The other question I'd like to ask, again with regard to accountability: We know that from 1989 to 1995 the government spent, through intervenor funding processes, $32.5 million to assist others to participate in the process, probably not a bad idea. My question is, however, what do you do with situations like when you know that $25 million of that was spent on one process that was ministerially evaporated when somebody decided, for example, that the 25-year supply-and-demand studies by Ontario Hydro shouldn't go on and $25 million had been spent? I ask you then, coming back to the question of accountability -- I think we can look at that in broader terms than maybe what you've defined -- how can we as a government account to the public for that type of handling of funds?
Ms Cowen: I don't think I need to be telling anyone in this room that waste and expenditure oftentimes go hand in hand. I can cite several examples, although I don't want to take up time, about waste by the Progressive Conservatives, waste by the Liberals, waste all over the place when it is associated with expenditure.
If I'm hearing your argument correctly, I'm hearing you say that because there was a $25-million waste with regard to intervenor funding then, "For heaven's sake, we have to scrap the whole damned thing," so I'm suggesting that maybe we should scrap an awful lot of expenditure that is very wasteful expenditure. But I don't see that it is any kind of appropriate argument to be addressing intervenor funding when it is so absolutely and vitally necessary for community groups or for individuals.
The Chair: Just two minutes for the government side.
Mrs Lillian Ross (Hamilton West): My question has been answered.
Mr Galt: Thanks very much for your presentation; interesting content.
I'd just like to point out that in the process we're putting forth there are five different points where there can be public input and involvement. You expressed some real concern up front with the consultation process, and certainly in developing the terms of reference it would be very wise and prudent on the part of the proponent to find out and lay it out with the public in developing that, and certainly once that's presented to the minister for focusing purposes and finalizing the terms of reference, it must go into the EBR registry for public input, so it is put before them very early at that point in time, just to try and help clarify.
The other one I was a little concerned about has to do with mediation. Mediation is a very informal process just by its nature, and once you take it into the public arena it becomes far more formal. It's meant as a process to bring two people or two groups together with a mediator to work out their differences, and if it's done in a public arena it makes it far more difficult. That was the thinking in there, and you may disagree, and I can hear that, but just to point it out.
What I'd like to come back to with you for just a couple of seconds is, how much better can we do, when the terms of reference are being developed, where you seem to be concerned with public consultation? How can we improve it in that particular area?
Ms Cowen: Again, this is information that has been presented to me only about -- I think I heard it the first time, Dr Galt, when you had discussed that there will be public participation in those crucial, critical early stages of developing the terms of reference. That is not contained within the bill. If effective, early participation in the terms of references' development design is contained within the bill, that certainly would satisfy me with regard to that, but to simply have it between the minister and the proponent defining the terms of the entire process is not appropriate and not acceptable.
Mr Pat Hoy (Essex-Kent): Good morning. I want to pursue the terms of reference a little more with you. I know you've just answered the government side on public input, but you also talk about meaningful public consultation and interested persons and that those categories aren't as yet defined. If we are going to have input into terms of references and other questions in this bill, would you say that the public which is going to have input into this until certain terms and definitions are established could indeed be anyone or that the allowance should be anyone?
Ms Cowen: Or no one. I think that is probably my concern: Who are interested persons and who is making the decision who the interested persons are? If there happen to be interested persons and if it isn't clearly defined who these people actually are, there could be an exclusion of people in this process. That's the only answer I have to that question.
Mr Hoy: I understand your answer.
Ms Cowen: Throughout this bill I've been concerned that there have been very ambiguous and vague definitions of numerous things: One is "equivalency" with regard to the harmonization portion; one is "interested persons"; one is "public consultations." There don't really seem to be very clearly defined definitions of these particular statements. They're the only ones I can think of right now, but as I was reading it through I was inundated by unclarity.
Mr Hoy: On page 3 you talk about the terms of reference portion and then you go on to say, "As well, it is recommended that intervenor funding be made available to members of the public." Are you asking for intervenor funding for persons who want to consult on the terms of reference, are you dividing that out and saying, "We need intervenor funding in the future for any aspect," or are you specifically asking for intervenor funding as you go into consultation with the government on all these matters that you brought up today?
Ms Cowen: I'm talking about intervenor and/or participant funding in every phase of the EA process from start to finish.
Mr McGuinty: Thank you for your presentation and for some very perceptive comments, I thought. Maybe just in passing, it's difficult to resist the temptation at times like this if you're in government -- I'm going to speculate here -- that somehow everything that's gone on before hasn't worked out and that there's a tremendous demand for improvement to be made in the legislation, and that's fair, but everything that has gone on in the past has not been a total failure.
I used to be our party's energy critic and I can tell you that if it had not been for the DSP and the requirements imposed upon the proponents, we could have ended up spending billions of dollars. I would say that was an important component in deciding not to go ahead with building new supply in the province.
The act is called An Act to improve environmental protection, increase accountability and enshrine public consultation in the Environmental Assessment Act. Who the heck could ever be against that? It just sounds so wonderful. The wordsmiths are earning their money today. But at the end of the day, as you point out, where's the beef?
My concern is that there is a lack of clarity with respect to ensuring things like public consultation and my concern as well is in part due to the record of this government vis-à-vis the environment to date. They have shown a proclivity towards finding that you have to make a choice between the environment and economic development in every case, and that choice doesn't have to be made. Modern thinking shows quite clearly that there's something called sustainable development and that economic development and protection of the environment can go hand in hand. But the government seems to believe that you've got to choose between one and the other and in every case you've got to opt for economic development.
I'm very concerned about the lack of clarity and I just want to thank you for your perceptiveness in pointing out that very problem.
The Chair: Ms Cowen, thank you kindly for presenting today and for taking the time with your group to consider this. We appreciate it.
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ONTARIO ASSOCIATION FOR IMPACT ASSESSMENT
The Chair: Our next witness is the Ontario Association for Impact Assessment, Mr Rowe. You've probably heard me provide the procedure here this morning. You have 30 minutes to use as you see fit. Whatever time remains from your presentation is allocated and divided up between the three parties. If you would state your name for the purpose of Hansard, and welcome to the hearings today.
Mr Steven Rowe: My name is Steven Rowe and I'm speaking to you today on behalf of the Ontario Association for Impact Assessment. We're an association of professionals who work in the impact assessment field in environmental and social impact. Many of our members have a great deal of experience in working in the environmental assessment area.
The Ontario chapter of the association has approximately 150 members. We're part of an international organization, the International Association for Impact Assessment, that has 2,000 members in 95 countries worldwide.
Members of our association have been thinking about the impending changes to the Environmental Assessment Act for some time. In anticipation of that we held a colloquium in May, 70 professional members attended and we produced proceedings from that colloquium which we forwarded to the government to provide some input because we knew that the government was very active at that time in thinking about changes to the act. Lo and behold, the act came out just a few days after we submitted our proceedings. We then proceeded to set up a subcommittee to examine the Bill 76 package, we prepared a submission under the Environmental Bill of Rights, and the presentation in the longer letter that's part of your package is essentially that letter.
The subcommittee has six members drawn from environmental professionals, the legal profession, people who have worked in both government and in the private sector for proponents and others. We brought together quite a broad range of experience of views but we pulled together what we felt was the closest thing we had to a consensus.
As to my own background, I'm a land use planner by background. I first became involved in environmental assessment 13 years ago when my firm Walker, Nott, Dragiceric, was asked to do an environmental assessment for a waste management for a landfill in Halton region. There was a lengthy process and a lengthy hearing, but that still is the only operating municipal landfill out there that was actually approved after a hearing under this legislation. So we have some experience of success.
Since then I've been involved in a number of other environmental assessment cases in waste management, transit, I was involved in the Hydro DSP hearing, and Mr Turkstra mentioned Mr Hodgson just now, a solicitor at the OWMC hearing. I was the witness who worked with Mr Hodgson on that salt mine alternative for the disposal of the hazardous waste residues.
I've provided a brief summary of points. What we've tried to do for the purpose of the presentation is to concentrate on general principles rather than going into the details. But we'll see how the timing goes, and if I'm able to go into a few more details within a reasonable period I'll do so.
The first heading on the summary is "Improved Certainty for Participants." We certainly support that principle. We've found difficulties in that area in our own experience and we support the use of terms of reference and time lines and guidelines to achieve this.
We've heard a lot of discussion this morning about the status of the terms of reference in the act. Once the terms of reference are agreed upon there's no opportunity provided to maybe change the terms of reference further down the road in response to changing circumstances. This is going away from what was originally envisioned for the EA act as being an investigative process, that you start out with a very broad field and you gradually home in on what turns out to be an appropriate solution to a problem. I think to be able to do terms of reference like this you really need to have a pretty good idea of what the solution is before you start looking for it.
We recognize the need for scoping, though, and we have enough experience in a lot of kinds of projects like waste management to pretty well know where we're headed, but there should be some provision -- and it's a very difficult area -- for terms of reference to be changed where necessary. Very often, over a period of time, circumstances can change so that you might end up with terms of reference quite unsuited to the problem at hand by the time the project is actually finished.
The problem is that if you provide for changes during the process, that offers an opportunity for abuse, for people to come in and use that as an opportunity for delay, so whatever process is there has to be quite clear and quite brief. Another way of doing this would be to say that once you have your terms of reference, you have to act on it within a certain time so that we don't have somebody with five- or eight-year-old terms of reference attempting to get a project approved.
Another issue in the certainty area is the ability of the minister to revisit previous approval decisions. I think this is quite a retrograde step. If you think of a business or a municipality thinking of entering upon an environmental assessment process, they have a number of options in front of them. A municipality could go to a waste haulage company and just have the waste hauled away, or they could take things under their own control and do things within their own area. In making that decision, they're going to be thinking, "If we embark on this process that's going to cost us this much money, what's going to be the outcome?" If, even after having got a positive decision to approve a project, six months later a minister can come along and reverse that decision, that adds a great deal to the uncertainty and will deter people from getting people involved in these kinds of projects in the first place.
In terms of accountability, what we see with this legislation -- I mean, my own area of work has been this long history of precedents and policies and ways of doing things under the Environmental Assessment Act which comes out of board decisions and MOE policies and things like that. It's become very unwieldy and I agree that we have to clear the air and strip that away and start from the beginning again. But what's happened here is that all of that has been stripped away and all we're left with in the act is this very broad range of accountability.
I've asked questions about certain things that could happen under the act, and people have told me, "Well, that wouldn't actually happen." Perhaps we should restrict the act a little to what we actually intend it to mean rather than opening up to very wide scope. It might have been helpful if the bill had been presented in the context of a broad umbrella statement of what the government's overall intentions are. I think the way it's released has brought about a lot of suspicion in a lot of people's minds.
In terms of certainty and predictability, one government could interpret this act in one way and another government could interpret it in a very different ways so proponents are going to have to be very wary of the political cycle as they work with this legislation.
We agree that there should be an ability to tailor environmental assessments to specific circumstances. There's a very wide range of conditions that come under environmental assessment, even within the terms of waste management. You could have an owner that owns dozens of sites across Ontarios, so who does that person consult when they do their terms of reference? On the other hand, you might simply have a road connection between two points and it's fairly clear where the communities are that will be affected, no matter what route the road will take.
I think that's part of the problem in defining interested parties etc so closely within the legislation, that you have to deal with a very wide range of circumstances and it's very difficult to legislate somebody to deal creatively with those situations as they arise. I think that's part of the role of the ministry in making sure these things are done properly, and perhaps guidelines are the most appropriate way to do it. Guidelines have been given additional strength in this act through having to be considered, for example, by the board in making decisions.
We are concerned also about the number of decisions that can be made such as in harmonizations, variances in terms of reference, selection of parties for mediation where there is no need for consultation or reasons for decisions. We feel that should be couched more closely either in the legislation or in regulations.
Moving now to sustainability, we consider this to be a very important principle in ensuring that critical ecological systems are maintained for future generations. In the relatively recent Canadian Environmental Assessment Act, sustainability issues have been embodied to a certain extent in terms of cumulative effects and sustainability issues. We feel that these could have been incorporated into the Ontario legislation. The purpose of the act is the wise management of the environment, but there's not much here which gives us the test that the end result is this wise management of the environment, and those overall sustainability issues are important.
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Moving on to hearings, I've been involved in some very long hearings. We agree that they should be made shorter and more focused, while also ensuring fairness and sound decision-making. I'd just like to make a quick note here that most environmental assessment hearings are not just under the Environmental Assessment Act. They're very long hearings, especially in waste management, that are also under the Environmental Protection Act, and processes as well are under the Environmental Protection Act, the Planning Act and other legislation.
The time lines that we've seen here are for the processing of an environmental assessment, but very often you have very voluminous Environmental Protection Act legislation that has to be reviewed as well. It's often that that holds up the approval process before a hearing, and the Environmental Protection Act material can lengthen a hearing quite considerably as well. There have been two-week cross-examinations on hydrogeology. So we're looking at a package of legislation. Improvements in the Environmental Assessment Act won't improve things unless things also improve in the EPA area.
There's been an initiative for waste management under the Environmental Protection Act to provide generic designs for landfills that would make it easier to approve them, but from my discussions, it appears that not many people would consider using those generic designs because of the cost involved. You're back to a site-specific approach which again is going to require a lot of time and resources for review.
The scoping of hearings is an important issue in deciding which issues are to be considered at a hearing. I find it's very difficult, because by doing a lot of this, you are sometimes putting aside issues that could turn out to be very important as the hearing progresses. When I was involved in the Ontario Waste Management Corp hearing, that is a hearing where perhaps that salt mine issue could very easily have been scoped out in the early stages because it had been dealt with to a certain extent and a lot of people weren't really pushing very hard for it. As it turned out through the hearing, there was some research that was being conducted by the corporation that didn't work out that made it much more difficult for them to bury their waste in the ground and the salt mine option became a much more doable approach, and that was partly why the evidence we gave in that area was so successful. As I say, it's a very difficult compromise in terms of, on the one hand, wanting certainty, and on the other hand somehow allowing for changes as they take place.
Some of our discussions were in relation to hearings that are on policies or strategic matters, not on specific sites. You could take as examples the Hydro DSP hearing and the Ministry of Natural Resources timber management hearing, both of them very long hearings. Here, you're attempting to establish policy. It's not necessarily an issue where there are people immediately affected by a particular site. In those circumstances, we feel that both in the EA process and in the hearing, there can be some concessions made in terms of stringency and rules of evidence and things like that. They can make this an advisory hearing to the minister to make sure public views come in in making these decisions, and then, once the policy is place, the siting decisions can flow from that and perhaps have more local scrutiny.
In terms of monitoring, it's been mentioned before that monitoring a project construction operation, we feel, is very important. Very often a project gets approved, and unless there's monitoring provided, say, for landfill, it would be provided for under the Environmental Protection Act, which is the detailed legislation that deals with the nuts and bolts of the environmental approvals. But with other types of projects, such as roads, there's no legislation which allows you to follow up on the actual approval and make sure somebody goes out there and checks that all the predictions on which this proposal was based are followed through and actually come true, and where they don't come true, then perhaps that teaches us something for the next round or when the next proposal comes along. At the moment, we're flying blind to a certain extent in that we spend a lot of time predicting impacts but then don't spend very much time assessing what the impacts were once the project is in place.
That brings me to the end of my presentation. In summary, I'd just bring a couple of other points to your attention. One thing is that we agree with the time lines that have gone into the legislation but we're concerned with the resources that are going to be made available within government to review these documents.
Sometimes the various ministries have substantial commitments. I heard someone saying the other day that perhaps in a northern district of the Ministry of Natural Resources the whole staff might be called out for a month to supervise a fire operation. That might be an extreme example, but who's there to do the response under the Environmental Assessment Act within the allotted time period, and what happens when one of the public agencies doesn't follow through on the deadline? It seems there are no real provisions in place to make sure those deadlines are actually met or to accommodate circumstances where it's very difficult for an agency which is suffering from staff cuts and cuts in resources to allocate the required resources to do that.
We're also concerned about the issue of there being substantive public involvement only at the early stages. We support the statements that have been made by others that there should definitely be consultation in preparing the terms of reference. We can say that it's to the advantage of the proponent to consult and that it needn't necessarily be in the legislation, but that's what we were saying all along when consultation wasn't in the act at all. Now that it is in the act, when it says there's consultation on the latter part of the process but not the terms of reference, I would interpret that, not being a lawyer but from my planner's point of view, as a statement that yes, consultation is needed in this part but not in this part.
Since the terms of reference are the most fundamental part of the environmental assessment under the new act, I think we should be providing for consultation in the actual legislation. I really can't think of any circumstances where you wouldn't need consultation, so why don't we just put it in the act?
You'll be hearing presentations from the Ontario Professional Planners Institute, of which I'm a member. I agree with the position they're taking with regard to harmonization of class environmental assessments and planning under the Planning Act. These are two processes that have been running separately, and it gives rise to a lot of duplication and confusion. They should be brought together. You'll hear more from OPPI about that.
In terms of proponent funding, I've worked on a number of projects where I've been a recipient of intervenor funding. I'm also, by the way, a member of the Canadian Environmental Defence Fund. I'm on the board of directors, and I'm on a committee that directs expert assistance, at cut rates, to community groups. It's important to harness whatever community resources we can to get involved in these cases, but to do it realistically, you really do need help in terms of the experts and the legal advice.
Very often, many of us would say it's advantageous for a proponent to do peer review during the actual process. I very wholeheartedly agree with that. As far as a proponent is concerned, and in their terminology, it's great for smoking out the opposition. As far as the opponents are concerned, it can often resolve concerns and it can often get a spirit of cooperation going. But I think we might need a little extra push to convince a lot of proponents to do that.
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I'm in general support of the principle of intervenor funding. I'm not sure when, if ever, it will come back again, but whatever we can do to bring whatever resources we can to bear in these processes and hearings I think is greatly to the good.
We've had a lot of involvement in considering the changes to environmental assessment over the past few months. We're ready to cooperate in any further refinements to the act, any future regulations and guidelines. We hope there will be consultation on the guidelines. We hear that there is, but again there's no provision for that in the act.
Thank you very much for the opportunity to be here, and I look forward to responding to your questions.
The Chair: We begin with the government side.
Mrs Ross: Thank you very much for an excellent presentation. I have a couple of questions for you. One is, when you talked about the terms of reference, you indicated that you felt there should be some sort of time frame applied to those terms of reference; ie, they shouldn't come out with terms of reference and be open-ended. They could last for 20 years or something without any changes being made. What sort of time frame would you recommend be looked at?
Mr Rowe: I think that would vary according to the kind of projects. You'd be looking at the kinds of variables that are involved. For example, with a landfill it might be waste quantities and the way that might vary. For a road it might be traffic rates. I think you would have to look at a mix in terms of individual circumstances.
Most legislated processes that I've seen in the past, review of waste management master plans and also, under the Planning Act, reviews of official plans, were on a five-year interval. That would be a reasonable base. I think it should be five years or less in most circumstances.
Mrs Ross: I'm not an expert, nor do I pretend to be, on environmental issues, but you appear to have some expertise in that area. I just wonder how this proposed bill measures up to what some of the other provinces are doing across the country.
Mr Rowe: I have limited experience of what other provinces are doing. I'm aware that most of the provinces have hearings that are a little less formal than they are here in Ontario. As a planner I'd probably feel a lot better having gone through some pretty gruelling cross-examinations, but I'm much more familiar -- I can't really speak with authority on processes in other provinces.
Mrs Ross: Okay. Thank you very much.
Mr Pettit: That was a very in-depth presentation and you have answered my one question. My second one would be that obviously there are going to have to be some regulations developed to support this bill. What type of consultations do you feel would be appropriate to develop those regulations?
Mr Rowe: It could be developed a little further in regulations, but probably guidelines. Guidelines tend to be a little more flexible. Given the range of circumstances that you can get with environmental assessments, as I said, you can be covering the whole province or just a narrow corridor, and with a huge range of possible solutions to problems.
A guideline can tell you that you should be going to the community groups who have an interest in this issue, to the business groups who have an interest in this issue. You should be going to people who could potentially be affected when perhaps a site is ultimately selected. That's very difficult when you're working at a province-wide level, although even then if in the terms of references you know pretty well where you're headed -- for example, if you're disposing of high-level nuclear waste, you're looking for certain kinds of geological formations, so perhaps something like that could come out of the scoping or come through the scoping and then that can help you to focus your terms of reference as you go along.
I think what the guideline has to do is really raise a series of opportunities of what's appropriate in different kinds of circumstances.
The Chair: Sorry. Time is up. We must move now to the Liberal caucus.
Mr McGuinty: Thank you very much, Mr Rowe, for taking the time. I know that you drove here this morning from Toronto. I appreciate the effort you made.
I just wanted to get something straight. You have in the past acted for proponents for relatively large and complicated undertakings. In fact, is that what most of your connection with this is?
Mr Rowe: Did you say "proponents" or "opponents"?
Mr McGuinty: Proponents or opponents. Which is it?
Mr Rowe: I've worked for both.
Mr McGuinty: Having had that experience on both sides of the table, you feel that it is in the proponent's interest that there be some kind of participant funding?
Mr Rowe: In many circumstances it can be in the proponent's interest, yes. Very often you might be halfway through an environmental assessment process, and say you're looking at a range of possible landfill sites. You have a dairy farmer nearby who's completely dependent on a clean water supply to run his business and his farm and everything else and for the household's livelihood. That person might be really concerned about the hydrogeology issue -- that would be an outstanding concern -- and may not believe the experts who have been hired by the proponent. In those kinds of circumstances, if an arrangement can be made to have a peer review done, which needn't be all that expensive, from a separate person selected independently, then that can help to resolve a lot of concerns.
Mr McGuinty: I wonder if you might tell us a little bit about the fact that this bill attempts to impose some time lines, which I think is seen by many, including myself, as desirable, with respect to how long the ministry's going to take to deal with proposals that come before it. However, what about the EPA obligation, the Environmental Protection Act obligations? Those are not addressed by this bill, as I understand it.
Mr Rowe: No.
Mr McGuinty: That's the technical assessment. Isn't that what takes up so much time? This bill is not going to resolve that.
Mr Rowe: For example, for a landfill hearing it takes a great deal of time. Just from what I'm hearing among the experts I work with, there doesn't seem to be much of a consensus out there that the government's approach in using what are called generic designs, sort of almost like a bathtub that you can place in an area without worrying about the local context as much as you would traditionally -- not many people would go with those kinds of designs because they have so much insurance built in that they're very, very expensive. People will still prefer to design with the site and feel that would probably be less expensive, but those designs take longer to review because it's not just a standard design.
There will be a lot of time spent reviewing those things, so the time lines that are here for the Environmental Assessment Act might not be easy to comply with. Some proponents run their Environmental Protection Act work concurrently with their Environmental Assessment Act work. So there's going to be a jostling between the two when the EPA reviews are taking longer than the EA reviews. Some people get their EA approval and then go out and do their EPA work. So they'll get their EPA approval, but there's still going to be a long lapse of time before they get a final approval for a landfill.
The Chair: Your time is up, Mr McGuinty. Ms Churley, please, for the NDP.
Ms Churley: You raised a number of concerns that I concur with. I don't have time to get you to elaborate on all of them now. In particular, on the terms of reference, I'm glad you referenced the need to clarify somehow how to deal with changing circumstances, because that's a major concern. We'll be asking the government to look at that.
I wonder if you can elaborate for a moment on another issue, and that is, as I think you put it, the changing political cycle, how different parties at different times could interpret the act differently.
Mr Rowe: I think we see an example of what can happen with the IWA process. I worked for both the city of Vaughan and the town of Pickering on that process, and we saw that process terminated at the end. Whether that was a good or a bad thing, it's an example of what can happen when there may be differing political agendas relating to a project and a person may feel the need to get an approval within a certain political time frame. But now, with the ability of a minister to reverse even after it's gone to a decision -- the IWA hadn't gone to a decision; it was still at the preliminary stages of the hearings -- that increases the politicization of the process, whichever way it goes.
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The Chair: Mr Rowe, thank you kindly for your presentation today: very comprehensive.
Before we recess, if I may remind members to please check out of your rooms and cover any of your own incidentals. We will reconvene --
Mr Hoy: Mr Chair, we have someone in attendance this morning who would appreciate some time to give a presentation, a Mrs Thompson. She's here. I think 15 minutes would be very gracious of the committee if it would allow her to speak. Do we have agreement?
Ms Churley: Agreed.
Mr Galt: I think our caucus could agree with that. I would bring to mind though that we did originally agree that there would be nine per day, three from each caucus.
The Chair: We have only eight at the moment and there's room for one more.
Mr Galt: No problem with that.
The Chair: If I can suggest we come back then at 2:15 and listen to Ms Thompson for 15 minutes, would that be adequate?
Mr Galt: At 2:15 or 1:45?
The Chair: At 2:15.
Mr McGuinty: Mr Chair, I raised a question earlier on, at the time that a witness was present, and I was just wondering if Mr Galt might take note of that. I request that he would table a response. That was with respect to the issue of if I felt that I ought to have been given notice and been involved as a person interested in the terms of reference, if I hadn't received that notice, what right of appeal or what remedy would I have, if any?
The Chair: Mr Galt, would you like to respond to that at the moment?
Mr Galt: Sorry. I was talking about the presentation of this 15 minutes. That was the topic we were on.
The Chair: Yes, that's right.
Mr Galt: I wonder if we just go ahead and have it right now, if the lady is here and would like to proceed, rather than put it off to 2:15.
The Chair: Would you prefer to do that right now? Okay, that's fine. We can begin right now.
GRETA THOMPSON
The Chair: Ms Thompson, welcome. Could you please identify yourself for the purpose of Hansard. We will have a total of 15 minutes. Whatever time is remaining from that we have a chance for questions. If there isn't, then that will be the time.
Ms Greta Thompson: I don't have a formal presentation. I'm your in-house resident expertise. I'm representative of what you're talking about, the public. I've tried to survive a landfill in my own backyard for 30 years. I go back to the days before intervenor funding came about, through the stages of requesting it. I've been through all three governments: the Davis years, the Peterson years, the Rae years. I'm here to help you.
The Environmental Assessment Act isn't working for several reasons. One is that the conditions don't stick after the assessment hearings are held. The discretionary powers of the director are too broad. The expectations placed on residents to enforce those conditions are impossible to meet.
I have another suggestion that I would like you to consider and then I'll open it up to anything you want to ask me, and if you have no questions, that's fine.
The landfill hearing process is much too expensive. We can't afford it any more. It's not doing the job it's intended to do. I would suggest to the committee to pull the landfill portion out of the Environmental Assessment Act. I believe the best we can do now are regional sites with tightly enforced boundaries, with rules that work.
They are fundamental decisions that need to be made; we don't need lawyers, we don't need expertise to make them. The process itself under the present Environmental Assessment Act is dividing communities. I think those of us who were involved in Toronto -- and I've been involved in assessment hearings throughout this province, including our own -- it divides communities. There are those who are opposed for financial reasons, those who support for financial reasons, those who oppose for environmental reasons. People have to go back to their communities and try and survive it. Thirty years later you'll find that all those conditions and all those hearings didn't protect anything, not even 1%. We need to find a different way. I think we can do that together.
I have no secrets; I'll answer any question you want to know. I'm not on any political side. I'm here to help you because we need to work together. The government has opened the door for us to have an opportunity to change the way we do things, to do them better to protect our environment, to do them at a cost we can all afford. My dream is the best site and the safest place in a way we can all afford.
Mr Galt: Thank you very much. I certainly appreciated your comments. A lot of what you're saying is what we're struggling with. We have to keep in front of us that the main objective of this whole exercise is protecting the environment. As I listened to the other four presentations -- I don't mean to slight anybody -- and the discussion, we were talking a lot of process, paperwork; just a lot of other things. The number one thing up front, as you're saying, is environmental protection. Certainly, as I was involved over the last few years getting into this political arena and hearing the problems in the past of environmental assessment and the hearings, it was an exercise of process and paperwork, and really we were forgetting -- at least it was a feeling I had -- this main objective of what it's all about.
I think you summed it up nicely, that the community gets divided on issues on environment and on financial issues and sometimes it's "not in my backyard." I hear from your comments that you ended up with a landfill site in your backyard. We have put out, and maybe you're aware of them, new regs for landfill sites.
Ms Thompson: I'm aware of them, and they fail completely.
Mr Galt: Have you responded to those?
Ms Thompson: I made arrangements to go to Toronto. I personally took the Via train down and paid my own way to meet with the waste management reduction. Unfortunately, after I got there they couldn't find the time to meet with me.
We talk about intervenor funding; you had some questions on intervenor funding. The best funding, and very little funding, up front on pre-consultations can resolve more of the residents' issues than the whole process. I think if you go back to the Green Lane environmental hearings, which lasted five days, which we participated in -- the Sarnia hearings were two days. If you put a little bit of money up front for the solicitors of the residents to work their way through those fundamental decisions that have to be made that concern the residents, you'll find you'll spend a lot less money and solve the problems a lot better. In the end you need an arbitration resolution committee. After you set the rules you need a way to arbitrate them when they're broken, or to enforce them. You're going to have to come to terms with that.
It could be two-pronged. My suggestion is to go to regional sites and start over with landfill rules. The other prong could be to change the way the process works now, and you can do it with a lot less funding. We set some precedents without any intervenor funding many years ago. We went to church basements and solicited those funds to protect our environment. My backyard is on the table because we have to get past where for a regional site. If we don't get past that we'll never solve our problems. My backyard, although I've tried to protect myself from it for 30 years, has been placed on the table as a regional site to find a new and better way to manage Ontario's waste. We have the chance here. Let's take it.
Mr Galt: Did you receive any compensation for living near a landfill site and loss of value of property?
Ms Thompson: No, sir. I have rejected compensation. Direct and indirect costs in less than four years exceeded $100,000 to try and survive a landfill. The expectations on the residents after the hearings are much too great. That's where the system fails -- monitoring. We don't have the staff, and ministry staff will monitor the wrong wells and base their decisions on tests they never took. There's not the staffing. The monitoring system and the ministry's performance are abysmal. It won't get any better with less staffing and less money.
Mr Hoy: You mentioned in the beginning, in your opening, that the director had wide-ranging discretion. Do you have an example of that?
Ms Thompson: Yes. We had a certificate of approval which had a strict condition that our site would serve five counties. We paid thousands of dollars out of our own pockets to get this condition before intervenor funding. It was five counties. The proponent wanted an all-Ontario licence. At the time that a government was purporting local responsibility for local garbage in one area, which was Toronto, in the other area that same government decided to grant an all-Ontario licence, to break that condition so hard fought for and so hotly contested, behind closed doors, over our objections, without any hearings, in fact before we even got a response to our objections. We had a condition, we worked hard for it and it was broken 15, 20 years later.
The reasoning the minister gave was to keep the site viable, but a year down the road, when the annual reports came out, we found out that the site was already at maximum. It didn't need the all-Ontario licence. That's an example of a condition. It has destroyed the environmental assessment process. It happened during a time when we were very successful in a movement towards local responsibility and getting people to be accountable for their garbage.
I'm not blaming one specific government. It's happened through the 30 years. When one of the lawyers suggested that we put it out of -- in our case, we believe we got the site because it was in a politician's backyard and he didn't want it, so we ended up with it. I fully relate to all of where we've been and where we are today.
Ms Churley: I just would like to say I'm glad we had the opportunity to hear from you, because it's good to hear from a citizen who's been involved in the process for so long. I would suggest to Mr Galt that perhaps he or the minister should pay your way to come back to Toronto and this time to give you an opportunity to be heard, because it sounds as though you could certainly help from a citizen's perspective.
Ms Thompson: I have been heard many times, including by standing committees.
Ms Churley: But I mean in particular the latest document you had attempted to have some input to, and couldn't be seen, I understand.
Ms Thompson: We're in a crisis in landfills, ladies and gentlemen. We need to do something now. You can't have another committee and have public input and not make some very tough decisions that have to be made. We've got to do it cheaper. We've got to do it better.
Ms Churley: Thank you. That's fine.
The Chair: Thank you very much, Ms Thompson, for your presence here today.
The Chair: Just before we recess, Mr McGuinty, do you want to say something?
Mr McGuinty: Sure, by all means. The matter I raised earlier was that I had a question for one of the witnesses regarding what rights I would have if I felt I had wrongfully not been categorized as a person interested, so if there's a proponent who is drafting terms of reference and does not consult me -- I'm looking to the government to perhaps table a response to that. Unless you have that answer right now, I would appreciate that.
Mr Galt: We'll try and have it for you tomorrow.
Mr McGuinty: Great. Thank you.
Ms Churley: Just briefly, in clarification of your question, it's my understanding from the discussion that particularly around the terms of reference there's certainly nothing at this point in the legislation that says you have to be consulted anyway. That's something we'll be asking the government to enshrine in the legislation. Mr Galt has said the only provision, and it's outside the legislation, is that the terms of reference will be posted on the EBR for people -- anybody -- to respond to, give comments on, so I take it you're asking more specifically around the upfront consultations, not including the terms of reference, but overall if you happen to consider yourself an interested person and to be left out of that.
Mr McGuinty: My question arises from section 6.1, which requires that a proponent, when preparing an environmental assessment, "shall consult about the undertaking with such persons as may be interested." I guess I'm looking for a definition of who the heck are people who might be interested and what happens if you are such and have not been contacted.
Ms Churley: Right.
Mr Galt: If I may, rather than spending extra time at this point, maybe if we could just get in writing what you would like, we'll be more than pleased to respond to you. Just jot it down on a piece of paper and hand it to me at noon or this afternoon and we'll certainly look after it.
The Chair: We'll have lunch together and talk about clarifying all this. We are recessed until 2:30 this afternoon.
The committee recessed from 1215 to 1427.
CITIZENS ENVIRONMENT ALLIANCE
The Chair: Okay, ladies and gentlemen, we had a good morning; I expect we'll have a good afternoon as well. Our next witnesses are the group from the Citizens Environment Alliance of southwestern Ontario.
Mr Rick Coronado: Thank you very much. I'm very pleased to be here today. My name is Rick Coronado, and I'm the coordinator for the Citizens Environment Alliance of southwestern Ontario. On my right is Marcia Valiante, who's an environmental law professor from the University of Windsor. I'll start with our comments.
First of all, thank you for giving us this time for our presentation. The Citizens Environment Alliance of southwestern Ontario is a grass-roots, regional organization with offices in downtown Windsor and on the campus of the University of Windsor. We have been in existence since 1985 and we are an alliance of many sectors of the community. We represent individual citizens and organizations; for example, our comments today have been endorsed by the environment committee of the Windsor and District Labour Council and the CAW Windsor regional environmental council. Both these organizations are members of the Citizens Environment Alliance. We are also a member of the Windsor and Area Coalition for Social Justice.
There needs to be an effective environmental assessment process in Ontario, one that ensures environmental protection. We agree that the existing process needs to be changed, but the core of the environmental assessment must still be, first, comprehensive consideration of environmental impacts and alternatives and, second, meaningful public involvement early and at key stages throughout the process.
The Environmental Assessment Act has been applied to a wide variety of significant undertakings by the public and private sectors. In our region it has been used in landfill projects, incinerators, hydro-electric developments, sewage works, roads and marinas. Its importance to the public is as a pollution prevention mechanism; that is, it is used prior to detailed project design and implementation as a way of minimizing environmental impacts on communities and the environment. Furthermore, it is important to the public because it encourages public involvement in seeking more viable alternatives and consultation with experts. Including the public in all important stages of the EA process is a way to resolve conflict and get better projects.
The role of the public in the EA process cannot be underestimated. For example, it was fundamental for the public in Windsor to have input into the design of the Windsor waterfront marina. Because of the EA act, the public was consulted and design changes were made to reflect their comments. It provided an important forum for consultation and discussion and the project was approved because of it.
While we agree that the process can be improved, we are concerned that an open and effective process remain. For us, the bottom line is that the amendments must give us a process that is fair to the public as well as proponents and that will ensure environmental protection. Efficiency alone is not enough.
Now Marcia will provide the details of our concerns about the EA amendments.
Ms Marcia Valiante: Good afternoon. I just want to start by saying thank you for the opportunity to address the committee. I'll start by telling you who I am, because you don't know who I am. I'm a member of the Citizens Environment Alliance but also an associate professor of law at the University of Windsor. I'm a former member of the Environmental Assessment Advisory Committee and, with another of my colleagues at the University of Windsor, I conducted the formal review of the intervenor funding project for the Ministry of the Attorney General, so I have a fair amount of background in this. I also practised law for a while and did environmental assessment as part of that practice on all sides, acting for the board and other participants in the process.
I want to say, by way of introduction, that in my mind the Environmental Assessment Act is the most important environmental planning statute in Ontario. After 20 years of experience with it, it's clear that there are both strengths and weaknesses in the existing process; it's not just a question of weaknesses in the existing process.
The materials that were released with Bill 76 state the minister's intention to amend the act to make the EA process more timely, less costly and more effective with environmental protection as the overriding objective. These are worthwhile goals which, if properly balanced, could improve the process. But unfortunately Bill 76 as introduced will not accomplish these goals and will in fact undermine another goal that's not mentioned, that of fairness.
The most comprehensive report on EA reform in Ontario is the 1992 report of the Environmental Assessment Advisory Committee. The principles in this report should guide amendments to Bill 76. Some of the EAAC's recommendations have already been adopted through administrative reform, some are included in Bill 76 and some are completely ignored. The risk for the EA process is that many of the EAAC recommendations that are included in Bill 76 are adapted in such a way as to threaten the integrity of the process, which could have an impact on environmental protection in Ontario.
The principle that EAAC emphasized, and that I would like to emphasize, that should guide amendments is a firm commitment to the consistent application of the essential principles of environmental assessment as a concept. Those are the comprehensive evaluation of rationale, alternatives and environmental impacts of undertakings and meaningful public participation throughout the entire process.
Now I've given you a more detailed brief and I want to emphasize a few areas within it, and then we can take questions on the more detailed section numbers and all of the detail of it.
There are three areas I want to emphasize. One is the need to guarantee a central role for the public in the environmental assessment process. Bill 76, or the material in it, the title of it in fact, purports to "enshrine public consultation" in environmental assessment.
Public consultation has been the practice with environmental assessment for a very long time, and this act does for the first time require proponents to consult. However, there are important steps in the process where public consultation is not required in the bill and should be. There's only one place where it's actually required in the bill. It should be required at every important stage in the process.
First of all, it should be required in the formulation of terms of reference for individual and class environmental assessments. The materials that were put out seem to indicate that terms of reference will go on the registry under the Environmental Bill of Rights. Unless the Environmental Bill of Rights is amended and the regulations are amended, this is not possible. You can't just put anything you want on the EBR registry. It hasn't happened yet and it probably won't happen with this. If that's going to be the place where terms of reference get public consultation, there needs to be a statutory amendment and a regulatory amendment to allow that to happen, and there's nothing in the bill right now that allows that, either for individual environmental assessments or for the class process.
Another place where it's important for public consultation is in the development of guidelines that govern the process. There is nothing in the act about how guidelines will be developed, although there is mention that policy guidelines will be developed and the Environmental Assessment Board will be required to consider them in making a decision. If those are to go through the registry process, then that should be clearly spelled out. In my view, that's the minimum process that should be required for public consultation on guidelines.
Another place where there's no requirement for public consultation is in exemption, designation or bump-up decisions. The act contains several places where decisions are made about who is going to be covered by the act, and there's nothing in the act, as it's written in Bill 76, that would require the public to be informed until after the fact. That to me is not acceptable because of the importance of those decisions for application of the process.
Another place where there's no requirement for public consultation is during the government review period when terms and conditions are being negotiated, which is how it happens in practice. That's the stage where terms and conditions are negotiated between the ministry and proponents. The bill is inadequate because it doesn't require the public be party to any of those negotiations, or at least comment on any of them.
The other thing that the bill does not deal with is the ability of some sectors of the public to actually participate. It's a hollow right to be given the right to participate when you are not financially able to do so. You don't have the resources available to allow you to review documents, to photocopy documents, to have access to experts. It doesn't help you very much to look at a statute and say, "I have the right to participate." One of the things that's left out is the issue of participant funding or any other mechanism for allowing the public to have access to experts, through the ministry, the board or anywhere else.
A second issue that I wanted to emphasize is the application of the process. Ideally, the EA process should apply to all undertakings that have significant environmental impacts potentially there. The reality now is that the act applies almost exclusively to public sector projects. The area of waste management is the only one where private sector projects have been designated on a routine basis. Ontario's the only jurisdiction in Canada to do this, to base a decision about whether the act applies on the basis of who the proponent is rather than on the basis of environmental impact.
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The act says that all public sector projects are under unless they're exempted, and the fact is that many public sector projects are exempted. There are whole ministries that are exempted from the act, and a whole range of projects have been exempted over the years, some with clearly significant environmental impacts. But none of this is addressed by Bill 76, and in my mind it should be.
Also, the bill includes a whole new set of ways for the process not to apply. The minister is given discretion to make orders declaring that the act does not apply, and those orders will not go through the process for regulations, which means they aren't going to be listed on the EBR registry, which means the public isn't going to be involved. My comments overlap and come back on each other.
The ability under the act now to make exemptions is there through the regulation process, but old section 29, which would have required those exemptions to be made as regulations, is gone. It's an administrative power to do that.
There is also the power to make orders that vary the contents of EA documents. The central element of an environmental assessment is the requirement to assess environmental impact, assess alternatives and justify a project in your EA document. The new bill retains the requirements that were in EA documents under the old subsection 5(3) but gives blanket power to make exceptions to that. You're going to have a whole range of proponents who are going to be getting different requirements from case to case. The variability in the process is going to be incredible, and the lack of predictability and the lack of certainty for proponents and the public is going to grow enormously.
The other areas where there is the power to get out of the process is the ability, under the harmonization sections, to declare that the act doesn't apply. There is also the ability -- I will talk about the class process in a minute -- to allow a whole set of projects to go through the class process without any criteria about what's an appropriate kind of project to go through the process. Also under the class process there's a new power to make an order applying a class EA approval to any proponent without any criteria and without any limit on how that order will be made. There's also the existing power to exempt that's retained in the bill, and that's done by way of regulation.
This to me is backwards. To design an act, you should start out to find a way to require consistent application of appropriate criteria, not to take a Swiss cheese approach to the act and say, "It only applies occasionally to the poor proponent who doesn't have enough political influence to get out of the act or to get out of the requirements of the act."
To me that's inappropriate, because one of the values that makes for an efficient process and certainly an effective process is consistency of application and certainty. You know what's going to be required of you; you know when you've met your requirements. There are a lot of ways that have been looked at, certainly in the 1992 EAAC report on EA reform, as to how that could happen, which is a combination of sectoral guidelines that give a lot of detail about how to comply with the more general requirements of subsection 5(3), coupled with the use of time lines and deadlines, some of which are in the act, to make sure that happens in a timely way. So there are ways around that. You don't have to just give a blanket discretion to allow the minister to get out of the process.
The other concern about the amount of discretion that's here is that there's a section in Bill 76 that allows every single one of those decisions to be delegated from the minister to an employee of the Ministry of Environment. One of the reasons to have the minister keep that discretion is that the minister is politically and legally accountable. An employee of the Ministry of Environment is probably more vulnerable to lobbying and influence on an ad hoc basis and less accountable to the public. That's a major concern.
The last thing I wanted to talk about, and then we can go to whatever questions you have, is the provisions relating to the class EA process. I think it's important that class EAs are finally going to be included in the Environmental Assessment Act, because they've never been there before; it will legitimize their status and, if the provisions are appropriate, will regularize the process, because each one of the class EA documents that's been approved has a slightly different process that's involved in it.
There are a number of issues that I wanted to raise with respect to class EA. The first one is, how do you decide what goes under a class EA? That's the threshold question of which groups of undertakings are appropriately dealt with through the class process rather than through the individual EA process.
This has been looked at by the ministry set of guidelines and also has been looked at by EAAC. What has come out of that is that criteria are necessary to ensure that there is consistency over what kinds of projects are dealt with through the class process. Those criteria are not in Bill 76. Because the class process has less onerous requirements for carrying out of individual projects that come within the class, the criteria should be specified in the act. To me, the class process should only apply when projects are recurring, limited in scale, use proven technology and have predictable, minor and easily mitigable environmental impacts. So Bill 76 should be amended to include those criteria, and subsection 14(2) should be amended to require that the EA document specifies how this particular class meets those criteria.
The class process is, with some modification, a mirror of the existing class process that isn't sanctioned by the act. The difficulty with the class process in the act is similar to the difficulty with the individual process, which is that terms of reference can be made without public involvement, exceptions can be made about what materials are included in a class EA document and, in particular, the considerations that are supposed to go into a class EA document; subsection 14(2) does not require a consideration of alternatives. That's the heart of environmental assessment, and it's not now required in Bill 76 for a class EA document.
There are a number of other issues which we can talk about if you're interested. The other issue I wanted to raise about class EA is the bump-up provisions. A bump-up is just whenever a project falls within the class that's already been approved, what mechanism is there to get that to a full EA if that's the appropriate way to go with a project.
There are a number of considerations that should go into that, but one of the things that needs to be mentioned is that the provisions in the bill do not have any requirement for public notice or consultation prior to the making of a bump-up order. This is unlike the guidelines that have been approved by the Ministry of the Environment and Energy with respect to bump-up orders.
The other consideration with class environmental assessment that I wanted to mention is the question of monitoring. Once a class EA has been approved, the projects that fall within it -- there's no monitoring by the ministry of the environment over those on a regular basis of how that class EA is being implemented.
The bill should be amended to require that proponents who have a class approval should provide information at least on an annual basis on the implementation of their class approvals. What this does is it provides information on how effective they've been at carrying out their class approval and also it's a feedback mechanism in terms of what the environmental impacts have been and what the efficiency of the overall class EA process is so that the next set of class EA approvals will benefit from that experience. There's nothing in the bill that requires that, which I think is a serious omission.
I'll stop there, and we can take any questions, because our time's kind of run past.
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The Chair: Thank you for your presentation. We have 8 1/2 minutes, so we've got 2 1/4 minutes per caucus. We'll start this afternoon with the Liberal Party.
Mr McGuinty: Thank you very much for your presentation. I wanted to ask you to comment a little bit about mediation and the role that you might see it playing. Is it a positive development, and who ought to be included in mediation sessions?
Ms Valiante: I think there are two places where mediation is mentioned: with respect to terms of reference and then with respect to the decision before referral to the board.
The issue of mediation, the way it's addressed in that section, and I think it's section 8 -- my concern about that is that the way mediation works successfully is that the people who are involved in it are there voluntarily and they're willing participants and that all the participants are there who have a stake in the outcome. The way this is worded it appears that the minister could simply order that certain parties be party to the mediation without ensuring -- there's not necessarily any assurance that the appropriate parties are going to be there or that all the parties are going to be there willingly.
I think if you look at the Canadian Environmental Assessment Act, the federal counterpart, the way they've dealt with mediation is that the minister has the power to refer to mediation, but the way it's phrased is that the minister can determine whether mediation has some chance of success or is an appropriate mechanism to use in any individual circumstance, and that will depend from case to case.
Mediation has been used a fair amount in the EA process, often successfully, and the board does mediation and there have been mediators called in at certain points in the process, and that has worked successfully in the past, just in the last few years.
Mr McGuinty: Should that be a public process, mediation?
Ms Valiante: Mediation? You mean the actual negotiation?
Mr McGuinty: Yes.
Ms Valiante: It's not usually a public process. If it's a very large mediation, it's effectively a public process, but one of the useful things about mediation is that people come in and they work from the point of view of what interests they have at stake and how they can accomplish their interests, and so it's essentially an off-the-record kind of process, and at a certain point it becomes a very public process.
Ms Churley: Both the minister and the Premier have made numerous public commitments to the principle of full environmental assessment, particularly in relationship to landfill and other waste disposal facilities. Would you say Bill 76 keeps that commitment?
Ms Valiante: With the amount of discretion in here, I would say that's not necessarily going to happen. With discretion, it could happen, but I think lobbying finds its way to the point of least resistance, and the more discretion that you have, the less likely it is that there is going to be a consistent process that's going to be applied. Certainly there's a lot of room for not applying the full EA process.
Ms Churley: Could I ask a question? A specific example: If there is an application for an incinerator, and normally you would think it would be necessary in that case to look at the three Rs, for instance, because they use the same feedstock, it's my understanding of this bill that it would be at the discretion of the minister and the terms of reference as to whether or not they would have to look at alternatives and that's where the discretion comes in. There could very well be, in other words, a siting of an incinerator without necessarily having to look at alternatives.
Ms Valiante: I think that's true. The terms of reference become the pivotal document for the whole EA process, and whatever is included in that will determine what the rest of the process has to consider and what will go to the board, even without the minister being able to narrow what the board considers. It's the terms of reference. There's no way to undo that once it's done; there's nothing in here about opening that up.
Ms Churley: So changing conditions would not --
Ms Valiante: There's nothing in here that would allow that to happen. The problem with that, from a public interest point of view, is that right now there's also no public input to the terms of reference. It's a very early stage, and the amount of time that's included for getting the public involved and having their comment on terms of reference is very narrow. You don't even know that you're necessarily a group yet; you're already on the hook and you have no chance of ever undoing that.
Mr Galt: Thanks for your presentation -- quite informative. I would like to point out to you that any changes in guidelines, changes in regulations or any exemptions being addressed all do appear on the Environmental Bill of Rights registry. It's standard procedure, and this bill should not change that direction. It's something that --
Ms Valiante: Can I say something?
Mr Galt: I'll just wind up here and then let you. It's something that's just sort of standard and does occur. One of the complaints we're getting is that there's too much on that registry, especially from environmentalists, that it's difficult to find the significant environmental concerns and issues.
What I did want to address to Mr Coronado was a statement he made that the EA process helps to resolve conflict. Yes, I can see it in a few instances, but from my experience and what I'm hearing, it seems to create conflict. Do you have some suggestions, something we can do with this bill or in the regulations, to reduce some of that division in a community? That's most harmful and certainly not the intent of what we want to accomplish.
Mr Coronado: The intent from an environmental standpoint, obviously, our first priority, is to protect the environment. As we've heard already, looking at the alternatives to any process is significant, it's a major priority, and it should be where the discussion, comment and maybe the disagreement comes from. If we look at the alternatives, we all at the table -- and I'm talking about proponents and those who are out to seek the alternatives -- if we understand what the alternatives are and outline effectively how those alternatives work, how they can benefit the community, I don't really see how there can be any further debate or division in a community unless it's, of course, the bottom line and there's profit involved.
Ms Valiante: About your comment about things going on the registry, I recognize that regulations and anything that's considered a policy will go on the registry. My concern is that there are some things that fall under here that don't fall within the EBR categories of things that go on the registry. They aren't policies, they aren't regulations, they aren't statutes or instruments etc. That was my concern.
The other thing about the registry is that there are times -- and guidelines are a good example of that -- where you're not going to get the kind of input that you really need on guidelines just by going through the registry. You need some kind of a more advanced public consultation mechanism. In the past, most of the guidelines, or a fair number of the guidelines, on EA have gone through a public consultation process through EAC, which is now terminated, doesn't exist any more, and that mechanism of public consultation made for greatly improved guidelines. You're not going to get that amount of input on a 30-day comment period on the registry; it's very difficult for groups to do that. That mechanism doesn't exist any more. That's a concern.
The Chair: Thank you kindly for your presentation. Our time is up. We appreciate your efforts and the time you've taken to be with us this afternoon.
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LAIDLAW INC
The Chair: Our next witness is from Laidlaw Inc, Mr Bob Redhead. Welcome.
Mr Bob Redhead: Thank you, Mr Chairman and members of the committee. My name is Bob Redhead. I'm director of corporate and government affairs for Laidlaw Inc and I'm speaking on behalf of Laidlaw's companies here in Ontario.
I want to thank you for the opportunity to appear this afternoon. We're certainly pleased to be here before the committee on Bill 76. As you know, Laidlaw companies are industry leaders in the provision of solid and hazardous waste management in Ontario. What may not be widely known is that it was a Laidlaw driver who invented the original blue box and piloted the concept of curbside recycling. Laidlaw has 39 waste management facilities in the province of Ontario, providing virtually the whole spectrum of waste collection and treatment, including highly specialized service for PCBs and the recycling of waste paints. In fiscal 1995, Laidlaw's revenues from its waste management services in Ontario approached $300 million. I've provided copies of my remarks, and with some of those, there were copies of our financial material.
Laidlaw strongly supports the initiative of the government to update the current Environmental Assessment Act to make the environmental assessment process, in the words of the Minister of Environment and Energy, Brenda Elliott, "less costly, more timely and more effective." We agree that environmental protection must remain the overriding objective of the act and the mandate of the Ministry of Environment and Energy. We also agree that the amendments proposed in Bill 76 will help to deliver better environmental protection through a process that is more certain as well as more accessible, provided that the initiative is comprehensively integrated with other planning and environmental legislation, such as the Planning Act, the Environmental Protection Act and the Municipal Act.
Laidlaw believes that environmental assessments and, in particular, hearings before the Environmental Assessment Board have all too often been bogged down because of the emphasis on process issues rather than the application. Although a fair and open process is important, the focus of any environmental assessment should be on the evaluation of impacts of the project on the environment and whether those impacts are suitably mitigated.
In addition to expressing our general support for the initiatives contained in the bill, Laidlaw wants to take this opportunity to offer some recommendations on how the bill can reduce risk, increase the certainty and effectiveness of the environmental assessment process in Ontario and get Ontario moving once again. Below is a discussion of some of the key amendments made by Bill 76 and our comments on each.
Laidlaw supports the government's proposal to harmonize Ontario's environmental assessment process with the federal process and other provincial processes to ensure that each project undergoes only one environmental assessment. We trust that the ministry will take the action proposed in subsection 3.1(2) as quickly as possible so that the proponents will not be faced with uncertain requirements or duplication of effort.
Government and business cannot operate without deadlines and schedules, and Laidlaw adamantly believes that the environmental assessment process is no exception. The absence of deadlines and schedules is clearly one of the reasons for runaway costs in the existing environmental assessment process. Deadlines are very necessary to ensure that environmental assessments are prepared and evaluated as quickly and efficiently as possible. Hearings that last for years do not benefit proponents, opponents, intervenors or the environment. Bill 76 indicates that deadlines will be imposed on the ministry for its review of the environmental assessment -- subsections 6(5) and 7(2) -- and on the public for the submission of comments or for requesting a hearing -- subsections 6.5(2) and 7.2(2). However, the bill gives no indication of what these deadlines will be, so we cannot judge their overall effectiveness.
Some of the deadlines imposed on the proponent, on the other hand, are set out in the act. For example, the proponent is given seven days to remedy deficiencies under subsection 7(5). In our view, specific deadlines will need to be imposed on government, the proponent and interested participants in the legislation, rather than clarifying them in regulations as suggested by clause 39(i), and flexibility incorporated in the legislation to amend such deadlines if circumstances arise where these deadlines are inappropriate. The threshold for amending such deadlines should be high enough to avoid amendments merely for convenience, but allow for the exceptional case.
Laidlaw fully supports the initiative of providing the power to appoint a mediator. Mediation can often help to resolve disputes in a more cooperative manner, both satisfying the concerns of all parties and saving everyone time and money. Laidlaw has in the past used mediators to assist in its processes. Mediation should not only assist in narrowing the number and scope of issues that must be considered in an environmental assessment hearing, but it can make hearings unnecessary in some cases. For example, we have had here in Ontario recent examples, in Grimsby, where mediation between the proponent and interested parties led to fruitful discussions that eliminated the need for a hearing. In addition to the provisions set out in Bill 76, the government should consider including a requirement that all parties must approve the choice of mediator. A mediator who is not accepted by the parties will be ineffective. Laidlaw also supports the option of in camera mediation.
The requirements for an environmental assessment set out in subsection 5(3) of the Environmental Assessment Act have not been changed. Laidlaw is surprised that this opportunity to clarify and streamline one of the most contentious and difficult subsections to the act has not been taken. We recognize that the bill does require the proponent to submit terms of reference to the ministry, to be approved by the minister, which will guide the preparation of the environmental assessment. The approved terms of reference may provide that the environmental assessment consist of information other than that required by subsection 6.2(2) of Bill 76 or subsection 5(3) of the current Environmental Assessment Act. It is not clear whether this means that the terms of reference may only require that additional issues be considered in the environmental assessment or that some of the requirements set out in subsection 6.2(2) may receive only limited consideration or even be deleted from consideration. Laidlaw is of the view that if, for example, alternatives to the undertaking or alternative methods of carrying out the undertaking are not relevant or of interest to the proponent and the participants in a given situation, the terms-of-reference exercise should be able to remove them as an environmental assessment requirement. Laidlaw does not believe that the requirements of subsection 6.2(2) will need to be imposed on proponents in every case.
Another lost opportunity to amend the act is related to the issue of need. The Environmental Assessment Board has often required proponents to demonstrate the need for the project in order to obtain an approval, causing considerable difficulty for both public and private proponents. Obviously, a private proponent would not proceed with the investment required for such undertaking if there were no business need for revenue or added shareholder value. This business judgement does not require review or second-guessing by third parties.
Since demonstration of need is not explicitly set out as a statutory requirement in the act, it is not a requirement in the preparation of the environmental assessment. However, the requirement has been imposed by the Environmental Assessment Board and by ministry reviewers in the past. Laidlaw believes it must be expressly removed or, at minimum, limited to public proponents in the bill. The marketplace will look after need without board or ministry intervention.
Laidlaw recognizes that the Environmental Assessment Board is governed by a regulation to the Environmental Assessment Act but believes that Bill 76 does not address or appropriately clarify the role of that board with these amendments.
The ministry has a wealth of experience in the area of environmental approvals and represents the overall public interest. Laidlaw takes the view that the ministry, in consultation with the proponent and the participants, is in the best position to grant or refuse certificates of approval and to draft terms and conditions. Currently, projects required to go before the Environmental Assessment Board for a hearing usually end up with a review of and ultimately a reconsideration of certificates of approval that have been drafted by the proponents, parties and/or the ministry. Laidlaw takes the view that the ministry and, in particular, the approvals branch, with its vast experience in approvals, should not relinquish its significant role over approvals simply because a project is subject to the Environmental Assessment Act, particularly in light of the board's relative inexperience in drafting and reviewing practical approvals.
The proposal in Bill 76 to give the minister the power to direct the board to hear testimony on only specific matters is a step in the right direction. However, Laidlaw would recommend that this approach be taken one step further, to require that the board only hear testimony and/or make decisions on matters as directed by the minister. Once the issues before the board have been decided upon, the project can be returned to the ministry for its approval and final drafting and review of the certificate of approval. The bill should clearly scope the board's power to deal with specific issues, whether they be technical or process issues, that are in dispute as directed by the minister, and when and if those issues are resolved, the ministry should be responsible for the certificate of approval in light of the board's decision on those issues.
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In those few special cases that require a hearing, another issue that is not dealt with clearly in the proposed bill is the issue of the overlap between Environmental Assessment Act hearings and Environmental Protection Act hearings, or hearings under other legislation. For example, if there are no subsection 6.2(2) issues to be dealt with, it may be more appropriate for a proponent to undergo the Environmental Protection Act process to deal only with technical environmental issues.
We note that the proposed bill does provide the minister with the power to defer deciding a matter if the matter is being considered in another forum, and the minister may also refer a matter to another tribunal if she considers it appropriate. This may be an attempt to ensure that there is no duplication between environmental assessment hearings and hearings under other legislation. Laidlaw supports any initiative to reduce overlap in terms of hearing requirements, but again would prefer more clarity and certainty with respect to the conditions under which a matter will be subject to an Environmental Protection Act hearing instead of an Environmental Assessment Act hearing.
Laidlaw approves of the codification of the requirements to "consult with such persons as may be interested" in the particular undertaking and anticipates an immediate need for further guidance on that consultation. For example, a definition of "interested persons" would be helpful in terms of guiding proponents in their public consultation programs. Should an undertaking go to a hearing, the board may ultimately rule on whether the proponents' judgement in this regard is accurate. That is far too late in the process to be assessed.
In the same way, Laidlaw would also anticipate an immediate need for guidance on the issue of participant funding; for example, during discussion of the terms of reference. With the sunsetting of the Intervenor Funding Project Act, proponents are left in a situation where there is no certainty with respect to how they should react to requests for funding. Proponents could take the view that since legislated intervenor funding is over, there is no requirement to fund any group that opposes the undertaking. On the other hand, a proponent who takes this view may, at the end of the day, find itself in a situation where a board decides it has not lived up to its public consultation obligations as it did not provide participant funding. Proponents need clarity and certainty with respect to what is required of them, and it would be preferable for that clarification to come from the government and not from the Environmental Assessment Board on a case-by-case basis at the end of a difficult process.
In summary, Laidlaw will continue to support all efforts of this government that will attempt to streamline the environmental assessment process to make it more efficient while at the same time maintaining environmental protection. We appreciate the opportunity to make a submission on Bill 76 and would appreciate any further opportunities to assist the government in revising the bill to reflect some of the suggestions proposed in this brief.
Thank you, Mr Chairman, and I'd be pleased to accept questions.
The Chair: Thank you for the presentation. We begin with the NDP.
Ms Churley: Thank you for your presentation. I wonder if you could clarify, because I don't quite understand it on page 5, item (b), "Hearings under the EPA and other legislation." What do you mean by that? I'm not quite clear on what you're asking the government to do with that section. That's the Environmental Protection Act, EPA, subsection 6.2(2).
Mr Redhead: This particular section refers to if the items that are listed out in subsection 6.2(2) have been addressed and have been resolved and there are no outstanding issues there, perhaps it would be appropriate to take a project forward under the Environmental Protection Act process where you're really discussing the technical merits of the project.
Ms Churley: Could you give an example, for instance -- you've been through a lot of these hearings, I know -- of what would constitute, where do you see a situation where that might happen?
Mr Redhead: I think in any project, and perhaps even a landfill project, an incineration project which you mentioned earlier, if through the front end of the process we've dealt with the issues that are social and community in those, and you're really into the issues of the technical merits of the project, it may well be that the Environmental Protection Act process is the most appropriate. I think those would be a case-by-case determination.
Ms Churley: On another issue, and that is public consultation, I doubt so far from the presentations we've had that the communities and the environmental groups and you are seeing eye to eye on these changes. One of the concerns we're hearing increasingly from community groups starting today is that public participation in their view is limited in this new bill. How important have you found in your experience the participation, although it can be a pain in the butt at times, I know, at the end of the day in terms of coming to the best solution for the environment and in some cases I suppose for your company?
Mr Redhead: First of all, the consultation is exceptionally important to the success of the project. All our facilities are in a community. It's exceptionally important that the community understands and participates in the approvals of projects we might undertake in their community and we would certainly seek to determine who the interested parties are. We talked in the brief about perhaps some indication as to how wide "interested" becomes. That's an issue for discussion.
Ms Churley: By the way, are you worried about that lack of definition in there? Would you be more comfortable -- because that's something that came up as well, that that's not defined, "interested party."
Mr Redhead: I think that's one of those things -- where I mentioned it needs to be done very quickly is once this piece of legislation goes forward, because I think any proponent wants to make sure they have followed the best process, and at the same time the communication and consultation with the community is exceptionally important. There's tremendous value added that comes from that process. We want to make sure that as to the view of a board or of the ministry or of another group that would have a view over a project, we have undertaken a process and have consulted widely, and that would encompass the interests or the view of that other body that has a role in the approvals of the project.
Ms Churley: Am I through?
The Chair: You have 38 seconds.
Mr Redhead: We're getting very precise.
Ms Churley: If there's a general consensus among community groups and environmental groups that there isn't enough adequate, meaningful public participation in this bill, would you support amendments, as have already been asked for, to build in more public participation; not specifically -- we don't have time -- but would you support --
Mr Redhead: I believe the opportunity for public participation is there and I think a proponent that goes forward without following that good practice goes forward at their peril.
Ms Churley: So you think it is adequate then?
Mr Redhead: I think the bill provides for it and I think it codifies something that wasn't there before.
Ms Churley: Community groups don't agree.
The Chair: We now move to the government side.
Mr Pettit: Thank you, Mr Redhead, for your presentation. You mention on page 6 that Laidlaw would need some guidance relative to participant funding and the sunsetting of the Intervenor Funding Project Act and you'd need some clarity as to exactly what is required of you. That aside, is Laidlaw in favour of participant funding?
Mr Redhead: Yes, we are, and we have provided participant funding in a number of our projects and would propose to continue to do so. As I mentioned earlier, I think there's tremendous value added that comes from that participation, particularly early on in the process.
Mr Pettit: I know Laidlaw is a good corporate citizen in the Hamilton-Wentworth area. As a good corporate citizen, would that apply whether that was legislated or not?
Mr Redhead: Yes, sir. I believe that the assistance for people to participate and understand the process, to take steps to better understand or be more conversant with the terms and issues we're dealing with in a given project is very important and very much worth the investment.
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Mr Marcel Beaubien (Lambton): Mr Redhead, since Mr Pettit gave you compliments for being in his riding, I also thank you for being a decent corporate citizen in my riding. Dealing with the proponent aspect, once the proponent prepares the EA and carries out the necessary mandatory consultation, do you think there should be a time line before that proponent submits the EA? At the present time there are no time lines. Do you think there should be a time reference as opposed to leaving it open-ended?
Mr Redhead: You mean a specific time between when we announce that we're going to do something and when we submit a final report?
Mr Beaubien: That's correct.
Mr Redhead: If I understand the new bill, I would think that's part of what takes place in the preparation of the terms of reference. I think determining how long something is going to take is difficult right at the front end, if I understand your question.
Mr Beaubien: If you look at the sheet that's been provided to me, it says that once the proponent has prepared the EA and carries out the mandatory public consultation, before the proponent submits the EA there is no time line. Do you think there should be a time line?
Mr Redhead: You're looking at the document that's attached to the bill, Proposed EA Approval Timelines, this piece?
Mr Beaubien: Yes.
Mr Redhead: I believe, as I said, that's something where during the terms-of-reference preparation you could develop and define that.
Mr Beaubien: So you think it should be defined during your terms of reference?
Mr Redhead: I think it's something you can't define until you get into the process. That would be my feeling. I'm really shooting from the hip here, but that's my feeling. It's not specified there, but it certainly could be specified once you understand the challenge before you. I think it might be very difficult to do that until you really had determined what the issues were, sir.
Mr Stewart: You make the comment that the minister now can "direct the board to hear testimony on...specific matters is a step in the right direction," but you also go further in suggesting "that the board only hear testimony and/or make decisions on matters as directed by the minister." Do you not feel that if you go that little bit further, if the flexibility of what goes before the board is not there, it may be too regimented to do it?
Mr Redhead: Let me tell you what we were trying to address here. The terms-of-reference process to us is a place in which we can define the issues. One of the biggest challenges you find in some of these processes is that in each step of the way you revisit everything that went before. In this particular case we're suggesting that once certain issues have been resolved to the approval of the minister in this case, or another body, the things that remain unresolved are the things to carry forward, and not to carry forward everything. I've been involved in some processes where we spent innumerable days revisiting old ground, and I think not to the benefit of anybody. That's what we were addressing there, sir.
Mr Stewart: I appreciate what you're saying and I agree with you, because you can't take everything forward. My concern is, should the things that are taken forward be slightly carved in stone or should this be recognized depending on what each particular hearing is going to be?
Mr Redhead: That's why I come back to the terms-of-reference piece again. I think that's the place where what goes forward is defined but also what went before was defined. I suspect that, boards being boards, there may be some areas that someone would wish to revisit. The concern we have is that oftentimes we revisit old areas that have been canvassed before.
Mr McGuinty: On page 3 of your presentation you talk about subsection 5(3) of the current legislation and how it may be better if a proponent could be exempted from meeting some of the obligations of the existing legislation in terms of what they have to establish for purposes of the environmental assessment. Can you give me an example of a case where it would not be appropriate to abide by the existing legislation in terms of establishing a description of the purpose and rationale and alternatives, those kinds of things?
Mr Redhead: The approach we're taking here is that in many cases we will have evaluated a number of alternatives before we arrive at a point at which we may wish to continue an existing project or move forward with a different one. I would think that in the case of where the philosophy buried in the front end of the process in the terms-of-reference piece will be able to determine that, there may well be no other alternative worthy to carry forward for a specific undertaking, let's say, and it may well be that particular requirement could be set aside in a situation where you could come to an agreement that that's the case.
That's the kind of thing we're referring to there, not necessarily to set it aside by virtue of saying in all projects of this nature one would set it aside, but I see this on a case-by-case basis.
Mr McGuinty: You talk about the importance of having these amendments integrated with the Planning Act, the Environmental Protection Act and the Municipal Act. I don't know if you've seen these proposed EA approval time lines yet.
Mr Redhead: Yes, that's what I was referring to, where the "no time lines" one is in the middle.
Mr McGuinty: The minister's intent is to reduce the time to less than one year whereas historically there's been a two-year decision time line without a hearing, as I understand it.
Mr Redhead: Yes.
Mr McGuinty: But isn't the real meat of it found many times, for larger undertakings versus the large landfill site, connected with review of the technical material, and that's pursuant to the Environmental Protection Act?
Mr Redhead: Right.
Mr McGuinty: How is an amendment to the Environmental Assessment Act going to speed up what's going to happen under the Environmental Protection Act? There's no obligation on the ministry staff to review it within a certain time frame.
Mr Redhead: No, and I guess that's part of the challenge we face in terms of what processes would be followed and where things get done. Again I would see that a lot of the technical work we would carry forward as a proposal would happen in the front end, that we would certainly have an opportunity to determine what the nature of our project would be and what the technical components of it would be. So where we've referenced the other acts, where we are involved with decisions under all those or where the environmental assessment component relates to those, we certainly would look to these being the new approach under the Environmental Assessment Act, to be sensitive to requirements under those other acts and perhaps some places where those would be resolved there.
Mr Hoy: All presenters have requested a definition of "interested persons" or they have difficulty knowing exactly what the government's speaking of here. What's the best way for everyone who has this concern to take part in that? How are we going to put the definition that those people are seeking or actually the one they get?
Mr Redhead: At the tail end of my comments I suggested there would be areas that are outstanding that we would be pleased to participate in. I think those are the kinds of things that can be taken to a workshop environment, and these can be done quite quickly, task force approaches to a specific question, and canvass those who are engaged. Our concern about it isn't that we might not capture in our view the right people, but maybe there are some thoughts within the committee or certainly within a government ministry that there are groups of folks one would want to make sure they capture whom we might overlook. It's that type of thing we're talking about.
Part of the concern we have is that if we define that -- what would happen in the front end of this process is that we would define who those people are for this project -- we would like to make sure that we, for all people's interests, have defined that we have the right community to communicate with so that we don't overlook anybody and find out later in the game that we've overlooked somebody important.
The Chair: Thank you, Mr Redhead, for taking your time and preparing the presentation. This will be considered by the committee.
Do we have the Environmental Hazards Team present? I understand they ran into a hazard. They were probably running over or cycling over.
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COMMUNITY OPPOSING LANDFILL DEVELOPMENT
The Chair: I'm going to ask then the Community Opposing Landfill Development organization, COLD, to come forward.
Mr Dave Maris: Thank you. I'm Dave Maris and I'm the spokesperson for COLD; that's Community Opposing Landfill Development. It represents all the citizens of Fletcher and area. Fletcher is about 10 miles outside of town here. If you were to drive outside 10 miles, you'd run into an agricultural hamlet. Our concern that I'm dealing with today consists of about 100 affected households immediately and about 189 residents directly impacted.
Fletcher is an agricultural hamlet. Pioneer families exist in that region and have been there since the European settlers came to the area. Also, it's a hamlet of strong religious convictions, which is also close to the centre of our fight here, that dealing with a landfill. If you were to go to the church in Fletcher, the Fletcher United Church, and look right in the backyard, you'd look at the site where we're trying to prevent a landfill from being established, which borders right on the church property.
For the last two months, the residents of Fletcher have been facing off with ministry legal staff, with your lawyers presently, in a dispute. We are the first citizens' group in Ontario to win the right to go to the appeal board to argue ministerial decisions. That's your decisions, that's your lawyers that we've been facing off with for the last two months, and I can tell you right now that the residents of Fletcher are not happy. They are not impressed. When I saw this bill -- we did quite a bit of research into this bill -- the same arguments that we're facing right now with legal staff of the Ministry of Environment, that are being presented to us prior to the upcoming hearings, I saw the same verbiage, the same wording, the same provisions in this act when I read it over.
To understand why COLD is presenting this statement today, one must understand the history of the fight for environmental and social justice that the Fletcher community has undergone since 1972, when this site was wrongly put in that community.
This site that the proponent opened and now wants to reactivate first became known to the residents on a fall day when the people noticed a furniture truck going onto the property, the unloading of cardboard from the truck, and then the burning of the contents of the truck. This occurred because proper notification to the residents and to the township had not happened. Notice of an impending disaster that would plague the residents for the next 25 years had been placed by way of an ad, about one inch by one and a half inch, in a newspaper that carried only two subscriptions to area residents, and I do not think they could have been faulted for missing the notice on that warm June day.
The proponent had misled -- some would say lied to -- the Ministry of the Environment on several points. He misrepresented his property, the distance to residents' homes that are located too close to the landfills even for the criteria of that day. He lied on the surrounding watercourses, subsurface conditions, residents' water wells that are still being used today for living purposes, and other necessary and legal criteria on the application form.
Regardless of this list, he was still allowed to proceed. In fact, he was burning garbage in an open pit before the last bureaucratic decision was made to theoretically open the site. He had submitted an almost blank application form, a form that required the signature of the clerk of the township to show local knowledge of intention. There was a signature on that form, but the "clerk" who signed the form couldn't even figure out how to spell his own name right.
All of this happened without the residents' knowledge. The knowledge of the township was limited to being told that this site may be a possibility but to wait until the process starts until submitting their concerns to request that it not open.
The plans for the design, location, operation, site control and other important necessities that were to be attached with the application form did not arrive at the ministry until after he started dumping and well after the minister of that day, George Kerr, and staff determined that this would be a good site.
Prior also to the receipt of any of this information, a decision was made by the minister that a hearing for the area residents and the township would not be required to open this site. After all, during all this discussion, a local MPP of the day but not in that riding, Darcy McKeough, had sent along a letter stating that this was a good site, one in the geographic centre of Kent county. The problem with his observation is that Fletcher is in the midst of that dump and close to the western border of Kent. I raise these and subsequent points because in reading Bill 76, I say again, I see the same scenarios and same mistakes being allowed to proceed that have plagued these area residents for the last 25 years.
Our history and our fight have parallels with the growth of the Ministry of the Environment and we are proud of some of our actions and their subsequent effects that have made progressive change in environmental laws and decisions that benefit the environment, our land and water, individuals, their communities and, as we all believed, all of our futures.
This fight proceeded: never easy, most frustrating, and one that has robbed members of our community of justice and dignity, put their futures on hold, and has them feeling the loss of their family heritage. Again, families here are pioneer families of the area and this one plague in their midst could possibly wipe their future from the area. This they believe, and this they will fight for. They have vowed to go to the streets if they have to, because they cannot exchange pitiful dollars for heritage and rights.
I will explain this possible revolution in my presentation and show that this scenario may possibly happen here and in other areas of Ontario under changes to the Environmental Assessment Act as proposed. You have to understand that they did not first break the existing laws, but they truly believe the government has.
The people of the area fought and the site was closed in 1978, particularly because of its unsuitability for dumping and because no municipality thought it viable to use. At one point, a ministry official wrote "Closed" on the certificate. Then in 1985, when the garbage business became lucrative, the proponent attempted to reactivate the site. The township went to court requesting several issues to be determined by the courts, but the judge refused the case, as he only looked to see that the ministry of the day back in 1972 had determined that the site hearing would not be required, and that was good enough for him. An appeal was launched and the second judge stated that while there was reason to believe the first judge erred in his ruling, he didn't believe this case was significant enough to the people of Ontario to warrant being reheard.
The task to reopen or close the site went back before the ministry and the people in 1990. Since that time, the residents, through COLD and Tilbury East township, have been working through the environmental process to get a hearing. With the residents in this fight is support from all the municipalities in Kent county, five environmental organizations, church groups, area labour organizations, agricultural organizations, the Lower Thames Valley Conservation Authority and many others. No one or any organization has come out on side with the proposal in this fight. The local Ministry of the Environment office had also recommended against the use of the site because of its unsuitability.
The Ministry of the Environment in 1990 changed the certificate of approval to prevent any waste from being dumped at the site pending sufficient data collected to give evidence that this site would be a technically sound landfill. Deadlines were put in place for the delivery of this information. Deadlines came and passed with little or none of the information supplied about the site. Both the residents and the township offered to send in consulting groups to collect the required data but have been prevented access to the site by the proponent.
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As stated, COLD worked through the Ministry of Environment and Energy, following the process that was in place, to see that this site is closed. We did this knowing that if we were to go to court to carry on this fight we could possibly be thrown out for not having gone through the full route in the environmental process.
At one point in 1990 we thought we would have a fair hearing, only to learn on the second day of that hearing that the proponent and approvals branch of the ministry had cut a deal to proceed with the possible reopening of the site. This deal fell through once again, as the proponent did not fulfil his bargain to supply required information to the ministry.
Approvals branch and legal services were still operating under the prospect that this site could be engineered to their satisfaction; meanwhile, other branches, and politically the government, and all local parties in this fight knew technically and morally that it could not.
Since 1990, during this debate the public has had full participation in decisions that were made, both in the ministry and politically. Progressive changes were being made in environmental law. The Environmental Bill of Rights legislation was a beneficial act that we participated in both from knowledge and experience.
With the EBR in place, as we finished going through the process, the Ministry of Environment and Energy posted an amendment of site closure on the EBR registry early in 1995. We were pleased and could see the end to this just fight. Then, with the change in government, the nightmare recurred. First, nothing happened with the notice, then it disappeared from the registry. A few months passed as what we now understand as the "new directions" of the ministry were put in practice.
A new notice was placed on the registry, this time allowing the proponent the opportunity to reopen the site. We appealed to the Environmental Assessment Board, as is our right under the EBR legislation. We have set a precedent in Ontario by being granted the first appeal of the citizens of Ontario; this because, even though the first notice was backed by environmental law, the approvals branch, acting on what they believe is the new direction, disregarded what we had fought 23 years for. We learned, after affidavits were filed in this case, that a new deal was struck with the proponent in a conversation that was unknown to the residents. As of now, we do not have the details of that conversation, but we will when the parties have to reveal under oath to the appeal board.
In submitting their case to the board earlier this year, both the proponent and ministry lawyers have argued that the residents should have restricted knowledge of and, as they believe and have stated, no right to be involved in the decisions being made by the ministry. This is at the core of the legal argument being put forward by the present Minister of Environment and Energy and this government.
If we fail at the upcoming hearing or through the courts, then the residents will require an open and improved Environmental Assessment Act to protect both the environment and their community, let alone uphold the rights and dignity of Fletcher.
It is necessary to view these changes in the context of the other regressive changes happening in the Ministry of Environment and Energy. The arguments currently being made by this government through the MOEE are indicative of what is happening to our case specifically.
Reductions of ministry staff allow for error and lack of enforcement; changes and elimination of regulations provide for the shutting out of public needs and have negative repercussions on the environment; loss of intervenor funding places roadblocks in gaining a fair and just hearing; cuts to recycling programs; cuts to conservation authorities; repealing the ban on incineration; changes implemented under the omnibus bill; and recent decisions such as those at the Taro site and at our site: This all adds up to the burning of Ontario environmental law that will continue if the Environmental Assessment and Consultation Improvement Act, Bill 76, is allowed to proceed.
I say this: After several public meetings, rural residents are recognizing via this example that your government has no regard for their rights, and when it is stated that Ontario is open for business, that now means they must vacate the premises. These residents have stated that business is the only sector with rights and the law will be dictated from Bay Street.
The whole approach of Bill 76 is wrong. It is not born from a respect of the environment or the people, and the curious aspect of the title must refer to the consultants and lawyers of corporate Ontario who were involved in the writing of this garbage.
I will say that there are residents and environmental organizations that are willing to rewrite an Environmental Assessment Act that streamlines the process and respects the rights of all. We have participated in the past and are always willing to do so.
Recognizing the fact that we were not consulted prior, I will put forward some of the recommended changes that I believe are necessary in this document. We believe that any bill concerning the EA act must also phase in private sector projects and regard cumulative effects and ecosystem concerns.
The following examples are not necessarily in section order of the bill but are in preference order to our example and with prejudice that our request is to scrap Bill 76.
Section 3.2, exemption declarations: empowers the minister to grant exemptions from the Environmental Assessment Act to a proponent or undertaking. There are no detailed exemption criteria included or the procedure that must be followed. It fails to state public notice and/or comment about exemptions that will be issued.
This cannot remain, as I see this will lead back to the abuse of power exhibited in 1972 when the decision was made by the MOEE, the minister, to allow the Fletcher site to open without the input of residents and their local government. The minister holds the responsibilities of office, and in doing so, such responsibilities must be known to the people through precise criteria and through responsibilities including full public consultation, project compliance and enforcement.
Section 6.1, public consultation: fails to properly notify the public fully and early on into the process. The duty to consult commences after the terms-of-reference phase and post-EA submission. It fails to define "consultation" and those to be listed as interested persons and/or parties.
This section must be scrapped as the public must have full and funded participation from the start. This can only lead to exclusive conversations and decisions. As in the Fletcher example of 1972 and 1995, the proponent and the minister exhibited abuse of power by not alerting the residents and local government of the project first and then making what some see as illegal decisions by not following the prescribed process. Proponents and the MOEE must require full public consultation throughout the process, fully notify the public of impending projects and decisions and provide all relevant documentation concerning project and ministry rationale.
I should add that an important point is that we have a resident right here in this room who lives within 500 metres the site. The board is entertaining arguments from legal staff that that interested person, as we see it, is not an interested person and has no right -- no right -- to be involved in this decision. That's what we're facing right now.
Section 7, government review: fails to require the minister to provide written reasons for an EA rejection and/or finding that an EA is deficient. This section does not describe the mandate of a government review team. The 45-day comment period is insufficient.
Recognizing the cutbacks to staff and ministry, there lies the problem to provide comment on projects. Perhaps in 1972 on Fletcher, the Ministry of Agriculture or Municipal Affairs or Natural Resources would have stopped this project. Even the MOE did not visit the listed site in 1972 prior to a decision being made to open. It was only after the issuance of the certificate that they realized the residents' homes were too close and their water wells were much closer than their homes and that the largest watercourse in the area happened to border the site, as well as one that crossed right through the site, I should state. It should also be stated that periodically this watercourse happens to flood the entire area, let alone the site itself. The conservation authority could have told the MOE, had they even bothered to ask. The minister must be able to reject deficient EAs, with written reasons for the public.
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Section 8, mediation: fails to provide for proper alternative dispute resolution and for the funding to interested parties.
Recognizing that there is no way for mediation on the Fletcher model, except for site closure, I realize that there are some projects that communities would like to see proceed, but only after their concerns have been properly addressed.
Sections 3.1, 11.1, 11.2, harmonization and minister's decisions on EA applications: empowers the minister to vary or dispense with any requirement of the EA act and can grant exemptions under the guise of harmonization; fails to impose public comment and notification, as well as requirement for written reasons; empowers the minister to defer matters and/or refer to any tribunal or "entity."
Scrap these sections as ambiguous elements can only lead to abuse of power. Again, we believe in full public participation and the minister must carry responsibilities and accountability. Decisions concerning Fletcher will be made hopefully by the Environmental Appeal Board. This tribunal carries an independence from those in the MOEE who do not or cannot or will not do the right thing. I would not want to see such tribunal independence lost to us or any other community, or to an "entity", whatever "entity" means.
Sections 6, 6.1 and subsection 6.2(2), terms of reference: fails to allow public access from the start of the project. The minister is empowered to approve deficient terms of reference.
This again raises the spectre of 1972 when the Fletcher proponent was required to submit information prior to the issuance of a certificate of approval. The submitted information consisted of one-word answers to who, where and what, and some of that information was false. Again, the decision to proceed was granted prior to the receipt of required documents. These documents were incomplete, even to the standards of the day, and included false information.
This is most important because the present government is still making decisions and barring public input based on that past incorrect information. We are going back presently to 1972 standing before legal staff today. This demonstrates the willingness of this government to allow proponents carte blanche on future projects in Ontario.
I would also reference the dictatorial decision made recently concerning the Taro site. Immediate residents, the public at large and local governments also have front-line concerns that must be respected in any environmental assessment.
Section 5, compliance, effects and effective monitoring: fails to provide the minister the ability to issue compliance orders against proponents that contravene EA approvals.
Presently, using the Fletcher model, I realize that there are proponents in Ontario who do not respect orders of compliance and monitoring. This drafted section of Bill 76 must be rewritten, as the sceptical side of me can only believe that this was done to carry forward the lack of respect that some have for the environment and the public. This section is ominous for Ontario. This section may prejudice a minister's or approvals branch decision as it would disallow pre-approval site alteration. The proponent in our example argues that he has spent a few hundred thousand dollars and he cannot turn back. Presently, some in the MOEE have not rejected this foolish claim and seem willing to believe this. Experts scoff at this allegation. The truth may rest closer to one hundredth of that amount, that unknown figure, as he does not have to reveal if he's even spent a cent.
Subsections 9(3) through 9(5) and 9(7) and sections 11.3 and 27.1, environmental board hearings: empowers the minister to deny reasonable hearing requests from the public; also empowers constraint, the limiting of scope, and allows for the issuance of policy guidelines on the board; allows for the variance and/or reversal of a board decision or decisions; empowers the minister to reconsider and/or amend and/or revoke a board decision.
I will conclude with this Orwellian aspect of Bill 76. There is nothing just that can come from this type of legislation drafted in such a fashion. The residents of Fletcher, as well as the people of Ontario, have built environmental law that carries a respect for all in and of the environment. Such law, policies, regulations, boards, agencies, directives etc were born from the recognition of holistic problems and the need to address them. These were built to be progressive, to ensure respect and to act independently of the whole, if required, to necessitate justice. When law such as this is brought forward that carries the possibility of contraventions of these principles and/or disregard of rights, then with it will be loss of respect for those who can enact such law.
I can say this based on the depth of personal experience, gained partially from the Fletcher residents and their 25-year-old battle and from wider participation in environmental struggles. It comes from being with those who cry after once again they are robbed of justice because those of power or those who carry influence have the tools they requested. I have been with them when they have asked me aside in order to say that they must leave their heritage or lose a door-to-door friendship of theirs of 60 years due to this plague in their midst. I can believe them when they say they will go to the streets to prevent this site from opening, as may others. For them, the Environmental Assessment Board cannot be lost. For them, the original intent of this EA act cannot be lost.
Bill 76 carries nothing that can provide justice for these residents and their environment. Those who drafted Bill 76 have long ago been lost and away from the environment.
Mr Galt: I'll respond. Just a little bit of clarification: There is public involvement early in the process. It will go on the Environmental Bill of Rights registry. Part of developing the terms of reference is about being involved with public process.
I questioned, as you walked through this, the concerns that you have. I'm confused whether you're really concerned about living next door to a landfill site and its appearance and the fact that's not the best address to have, or if it's a pollution concern you're expressing to us that you've experienced over the 25 years.
Mr Maris: This is both a pollution concern and the right of residents not to have a dump right -- and I mean right -- bordering their site that doesn't meet the minimum criteria.
I've got to say about public involvement that it was us who had an order to close that site on the EBR registry. You're the parliamentary assistant. Your legal staff, your approvals branch, threw that order away. We had fought 23 years for that order. You threw it away as if it did not even exist and you posted your order on there which allows them to proceed. I don't want to hear that the EBR registry is protected and enshrined in this bill. It's not there because your actions have thrown it away.
As I want to state again, you tell the resident back here who lives 500 metres from that site that your legal staff today are arguing that he has no right to make an argument before the Environmental Appeal Board, that he is not an interested party. I see it in the act, I see contraventions in the act, and I see and I listen to your lawyers today say that we don't have the right to argue our case.
The Chair: We'll have to move along. I'm sorry, we're running out of time.
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Mr Hoy: Thank you for your presentation. You've gone through a lot of history here that I think can prove to other members that we have to be mindful of protecting those interested persons, the need perhaps for intervenor funding. I think you're citing instances in the bill where you have concerns that you've experienced. So they have a firsthand look at the long history of the Fletcher landfill site. The bill also, I believe, questions whether a community has to be a host community, and clearly the Fletcher people don't want to be a host community for a landfill. Since this struggle has taken so much time and many years in fact, I wonder if you'd care to comment briefly, since we have so little time, about intervenor funding and what it could have done or not done for you.
Mr Maris: I heard the argument this morning that because X number of dollars have been spent on intervenor funding, therefore it was a waste and it should not be made available and it was struck down.. The people of Fletcher have never brought forward a frivolous or vexatious argument, and we have always done so on our own resources.
As I stated, 189 residents are directly impacted, and I recognize today that some of those residents have limited resources. There was a time when Kent county and Tilbury township had money to expend on this fight. That is not here today. They do not have the money. So basically, whereas before we could work in partnership with municipalities, now we are carrying the ball for the residents immediately impacted and for the county and for Tilbury township. The money is gone.
Meanwhile the other side, which stands to gain hundreds of millions of dollars based on the size of this site, on that gamble can spend or have the possibility of entertaining and recovering vast amounts of money and can bury us with consultants and lawyers. That hasn't happened yet, but that is a possibility. Twenty-five years these people have been requested to come forward and carry on this fight with the moneys they collect or from their own personal lives. Twenty-five years their lives have been set aside, some of them; some have left. For a fair and just and open hearing, they have to have intervenor funding.
The Chair: Your last question, Ms Churley.
Ms Churley: I was quite surprised at the question from the government parliamentary assistant because my impression of the story you told today, albeit at times quite angrily, is that your community has gone through a tremendously horrendous time over this process, and I don't think that we could blame any community for being upset and angry about this.
My sense of what you were talking about here today was not getting due process, that the process was abused terribly. I haven't met anybody yet who wanted a dump in their backyard, but the bottom line is, at least if there's going to be a dump in your backyard, you want a fair, aboveboard, fully participatory process where you feel empowered and, whatever happens, you feel at the end of the day all of your environmental and other concerns are on the table. That's what I got from what you were saying, and that your fear is that this legislation is actually going to make things worse on top of the problems that already existed under the other act. Is that not what you were trying to tell us today?
Mr Maris: Yes. To start with, you have to understand our anger. Twenty-three years we had the order. We could have been arguing today the conditions, how we want that site closed in respect to the area. We don't have that luxury today. We are back at square one after 23 years. So yes, the residents are angry.
I can say that at the start of this argument 25 years ago perhaps the people came forward with concerns that were not about the environment. Over 25 years they have educated themselves about the effects of this on the environment and others, so they're beyond and they want a fair process. We went through the fair process, and as I stated, it was most frustrating. We went through it, recognizing the fact that the courts threw out Tilbury township on what we see as a wrong ruling. We didn't want to have to go back to the courts and have it be lost to the courts, so we went through the whole process, most frustrating but always progressing, because what we do is right. But we're asking for a fair hearing.
We're facing those arguments today from the ministry lawyers that are in this legislation and how they want to interpret it. As soon as I saw this bill, they all popped out. I could set it right down beside the legal submissions of MOE staff today on our case and see word for word copied, paragraphs copied. This is what they want to go forward. So yes, anybody can sit here and tell me, "The intent of the bill is this." "The intent of the bill is that," but it's the actions that are being implemented on the people of Fletcher and the area residents today that show the true intent of this legislation.
The Chair: Mr Maris, thank you very much for presenting that particular case. Hopefully, this can be resolved and the community will be involved as appropriate.
Mr McGuinty: Mr Chair, I notice that again this afternoon we have had one presenter unable to attend and we have another on standby, if you will, prepared to make a presentation. They're seeking 15 minutes. Todd Pepper is the general manager of the Essex-Windsor Solid Waste Authority. He's here now and I'm looking for all-party consent.
The Chair: Do we have all-party agreement to this? We do. Thank you.
ESSEX-WINDSOR SOLID WASTE AUTHORITY
The Chair: Mr Pepper, you have a 15-minute period, and whatever time you don't use, we will share that between the parties for questions.
Mr Todd Pepper: Mr Chairman, members of the committee, thank you for hearing me today on short notice. As Mr McGuinty said, I'm the general manager of the Essex-Windsor Solid Waste Authority. We have the benefit of being only the second community in the province of Ontario to obtain an approval for a landfill site under the environmental assessment process and, unlike our predecessor, Halton, we actually were able to complete that process without a hearing under the act, mostly because of the public consultation process that Essex-Windsor completed and carried out over the 11 years our process took.
Just some brief facts. During that period of time Essex-Windsor spent $11 million of local taxpayer money and $3 million of provincial money in order to complete that process, and as I say, was only the second proponent to actually get through the current provisions of the EA. I'm going to make a radical suggestion to you today, one that you have not heard up to this point, and that is that the Environmental Assessment Act does not need to be amended, it needs to be eliminated. The act, contrary to its original intentions and certainly the wording of Bill 76, does not protect the environment. That is what the Environmental Protection Act is for.
I think if we're really going to talk, the environmental assessment process is nothing but a planning process, not an environmental protection process, and as such -- and I'd like to note for the committee that my comments are strictly related to the landfill side of the EA process; I understand there are many other undertakings regulated by the process, but my experience is solely on the landfill side -- landfill siting is, as Mr Turkstra referred to earlier this morning, a land use issue and we have a well-defined land planning policy procedure and act in this province that can very easily be applied to the siting of a landfill site and the approval of a landfill site. However, given that that's a rather radical suggestion that may not seek favour throughout the province, I would like to give you some specific comments on three sections of the amendment as proposed and before you today.
Section 6.1, while enshrining public consultation, does not define the consultation. Essex-Windsor, while not required by the current legislation to carry out any public consultation, has held, over those 11 years, over 50 public meetings. We have published newsletters, we have had what we call kitchen table meetings. We would literally show up with myself, my consultants, our lawyers in somebody's kitchen and meet with them to hear their concerns, to get their involvement in the process, to understand what their concerns are and try to resolve them sitting right at their kitchen table. That's not legislated; that's done. As you heard from Laidlaw, any proponent who proposes to get anything approved in this province must go through that process, whether it's legislated or not.
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What I'm suggesting to you is that although it's fine to enshrine public consultation, it must be defined. I recall about five years ago, which was well into the process, the chairman of one of the local public advisory committees, called the MAD group, Maidstone Against Dumping, saying to me: "How many times are you going to come and ask my opinion on putting a landfill site in my backyard? I've told you 20 times at 20 public meetings we don't want it. How many times are you going to ask?" We had to be apologetic and come back and say: "We're sorry. This is what the process requires us to do. We have to come back and ask you one more time to fill out this form or give us your opinion."
So define what types of public consultation you're looking for. When you sit down at the end of this process and you look at section 6.1, I ask you to ask yourselves the question, "Who, how often, and at what stages should public consultation take place?" And make it clear -- I understand not in the act but in the regulations that hopefully will follow shortly thereafter -- that public consultation is defined.
Subsection 6.2(2) still requires the review of alternatives to the undertaking. This requirement was fine in the late 1970s or perhaps even the early 1980s. However, we now have mandatory recycling regulations in this province. It is not a matter of looking at recycling as an alternative; it is mandatory. We have mandatory requirements for yard and leaf waste management. We have mandatory requirements for backyard composting. It's no longer necessary to look at these as alternatives to the undertaking; they are required by provincial legislation and regulation.
The process of reviewing alternatives also sets up a differential between the private sector and the public sector in the environmental assessment process. Myself in the public sector, the majority of the time that we spent in this 11-year process is looking at alternatives to the undertaking. One of the most controversial components of that, of course, is the site search process. The public sector must, through the process, find the best site possible anywhere in the jurisdiction; in our case, all of Essex and Windsor. If you're familiar with the county of Essex, it takes you approximately an hour to drive from one end to the other. That's a very large physical area in which to investigate, and of course you can imagine the cost in carrying out that investigation.
The private sector does not have to do that. The private sector is allowed to acquire land right at the beginning of the process. The public sector cannot do that. While Essex-Windsor received its environmental assessment approval on August 10, 1995, it isn't until this very day, while I'm sitting here, that my staff is finally getting a shovel in the ground to start construction of the regional landfill site, because of the delay in the process that we must go through, after approval of the undertaking, to then acquire land.
My final suggestions or comments are on section 9 of Bill 76. I suggest to you that there is a conflict between the wordings in subsections (3), (4) and (7) of the act, which I would ask you to please consider during your learned debate after the hearing process.
In subsection (3), the minister can scope a hearing and direct the board to consider only specific matters. However, under subsection (4), the board is not precluded from hearing argument on any issue related to the applicant, even though the minister has ostensibly given them direction to scope a hearing.
What's even worse is that when we get to subsection (7), the board can then make decisions on matters even though testimony has not been heard at a hearing. It would seem to me that this gives the board exceptional discretionary power and could permit the board or an individual member on the board to impose or reflect their own ideas, their own prejudices, their own opinions on this very lengthy and well-studied environmental assessment process, perhaps even contrary to expert opinion that's been submitted on a witness stand.
Those are my brief comments. Again, I appreciate the opportunity. In discussion with the clerk, I will provide my comments in writing after I have an opportunity to look at the bill in more detail.
The Chair: Thank you. We'd be happy to receive your comments in writing. We have just two minutes for each party. We'll begin with the Liberal Party.
Mr McGuinty: Thank you very much for your presentation, Mr Pepper. I was glad you were able to have a chance to present.
There's been quite a bit of discussion today about the absence of a definition for those persons as may be interested. I wonder if you could, right here and now, take a stab at that.
Mr Pepper: Right here, right now. I think it's easy to define. Certainly there is the host municipality. That's critical, and it's suggested throughout the proposed act that the clerk of the local municipality must be notified.
We have used a policy reflecting 500 metres from the proposed location of the landfill site. From our perspective, that seemed to define those who had specific interests that might affect their property, that might affect their quality of life, that affect their immediate neighbourhood.
Generally, and certainly in our case, there are well-defined public-interest groups. You've heard from Mr Coronado today, from the coalition. That is a well-known, defined group. What was interesting in our process, during the intervenor funding process, is we actually had a group come forward that none of us had ever heard of who were provided funding under the intervenor funding act, received their money, and we never heard from them again. We don't know who they are or what they did with the money. So I think interested persons can be well defined within those terms.
The Chair: Just in time, Ms Churley.
Ms Churley: I apologize for missing part of your presentation. I had to make a telephone call. I didn't hear all of your presentation but I certainly heard a very controversial statement before I left that you would start a revolution, I think -- you didn't use those words -- and get rid of the process. I think you mean particularly relating to landfill and other waste facilities, is that right?
Mr Pepper: That's correct. I defined it right at the beginning as applying simply to the landfill siting process.
Ms Churley: I'm sorry if I'm redundant. I'm sure you spoke to this, but you would see another process in its place that would cover all of the environmental considerations so that at the end of the day you have the best environmentally sound project possible?
Mr Pepper: Yes. I believe those are best covered under the Environmental Protection Act. That is the legislation designed, by its very name, to protect the environment. I've had a chance to look at the draft regulations that the ministry has published in relation to landfill design siting criteria and I think they are more than capable of meeting the environmental concerns of a landfill in your backyard.
Ms Churley: I mentioned, in asking a question earlier, looking at alternatives to the site and alternatives to the undertaking, which in my view is very important when you're looking at, say, incineration and looking at recycling and reduction, that issue, that you have to look at the holistic and cumulative effects of all of those things. How would you deal with that under your proposal?
Mr Pepper: I mentioned that during my brief. What I've suggested is that when the EA was first drafted and put into place, we did not have the regulations that required alternatives to the undertaking. What I mentioned is that today we have very defined regulations requiring recycling, requiring composting, management of yard and leaf waste, and in fact requiring us to meet a 50% waste diversion objective by the year 2000. By the way, Essex-Windsor has achieved a 43% diversion rate as of the end of 1995.
Ms Churley: Congratulations.
The Chair: The final question of this session this afternoon, Mr Stewart.
Mr Stewart: You have made the comment that public consultation should be laid out very explicitly during this process. We're hearing today that public consultation should be starting from point zero all the way through. I appreciate what you're saying, because over the past eight or 10 years the criteria have been changed every couple of years. You'd start all over again and it just got a different group of people mad.
Mr Pepper: Yes.
Mr Stewart: Tell me in your opinion what you think and how much public consultation should be included in this act.
Mr Pepper: I agree wholeheartedly that you need public consultation right at the beginning and that this should lead to defined terms of reference which are essentially signed off at that point by the parties.
You're quite right. We went through five municipal elections, three provincial elections, with actually three different governments in power, three mayors, nine wardens, six EA review officers. When you consider the length of time and the changes that took place during that time, it's critical that public consultation be there right at the beginning, that the terms of reference are defined with their assistance.
The public knows what the concerns are today. When the EA started in 1980, this whole environmental issue was new to all of us, but we've all had 15 years of public education and attunement, if you will, to what's going on in the environmental process, and I think it's time to move beyond that.
The Chair: Thank you kindly, Mr Pepper, for your presentation. We would welcome anything in writing that you would care to submit.
Ladies and gentlemen of the committee, tomorrow morning we will be resuming at 10 am with opening statements at committee room 1 of the Legislative Building.
Is there any other business? There not being any other business, we will adjourn for this afternoon and resume tomorrow morning at 10.
The committee adjourned at 1622.